Opinion
NO. 97-CV-0349E(Sr)
February 9, 2001
Attorneys For The Plaintiff: Pro Se, Auburn, N Y 13021
Attorneys For The Defendant: Donna Millings, Esq., Buffalo, N Y 14202
MEMORANDUM ORDER
Ballew petitioned pro se for a writ Of habeas corpus pursuant to 28 U.S.C. § 2254 April 30, 1997. Petitioner states that his conviction was obtained in violation of (1) his Fourth Amendment right to be free from unreasonable search and seizure, (2) his Fifth Amendment right against self incrimination, (3) his Sixth Amendment right to counsel and (4) his Fourteenth Amendment right to due process and equal protection. The undersigned referred the petition to Magistrate Judge Carol E. Heckman pursuant to 28 U.S.C. § 636 (b)(1)(B) May 6, 1999 for a determination of the merits of the factual and legal issues raised by plaintiff and a recommended disposition. Judge Heckman filed her Report and Recommendation ("the RR") December 20, 1999 recommending that the petition be denied. Petitioner timely filed his objections thereto March 8, 2000 and such objections were submitted on the papers April 28, 2000 and are presently before this Court for disposition.
Familiarity with the facts which are more fully recounted in the RR is presumed, although relevant facts will be briefly recounted. Petitioner was out on bail pending appeal of a previous conviction — for which appeal he was represented by Paul V. Hurley, Esq. — when he became a suspect in a case of a missing woman, one Vynn Anne Ryan, whom the police believed had been injured. State Court Records ("SCR") September 28, 1984 Order at 8-10. Pursuant to N.Y. Crim. Proc. Law § 530.80 Assistant District Attorney John DeFranks and Lieutenant Slade of the New York State Police convinced the bailbondsman to revoke petitioner's bail so that he could be brought in for questioning on the missing woman case. Id. at 10. Before petitioner had been taken into custody, DeFranks telephoned Hurley and informed him that petitioner was going to be taken into custody for questioning regarding the missing woman. SCR April 6, 1984 Stipulation between Hurley and DeFranks. Hurley states that he asked to be called when petitioner was picked up; however, DeFranks stated that Hurley made no such request. Ibid. Petitioner was subsequently taken into custody based on the withdrawal of the bail bond and brought to the State Police Barracks for questioning regarding the missing woman. SCR September 28, 1984 Order at 10. Petitioner was read his rights, stated that he did not want or need an attorney and subsequently made several incriminating statements and drew a map showing the location of the missing woman. Id. at 10-11. Subsequently petitioner asked to speak with Hurley and questioning ceased. Id. at 11. The police later recovered Ryan's body. Id. at 13. Petitioner was convicted January 11, 1985 in Erie County Court of inter alia, murder, attempted rape, robbery and kidnapping. He appealed to the Appellate Division of the New York Supreme Court for the Fourth Department which unanimously confirmed his conviction May 11, 1990. The New York Court of Appeals denied leave to appeal August 10, 1990.
"The Appellate Division specifically noted that it had reviewed the pro se brief filed by petitioner.
Petitioner objects to the RR on the following grounds: (1) that he was denied his Sixth Amendment right to counsel because he was represented by Hurley in a case that was pending in the Clarence Town Court at the time he was arrested, in addition to the case for which Hurley represented him on appeal, (2) that he was denied his Sixth Amendment right to counsel because his attorney had been notified that his bond was being revoked and had entered the case by asking to be called when petitioner had been picked up, (3) that he was denied his Sixth Amendment right to the effective assistance of trial counsel by counsel's inadequate argument of his denial-of-counsel claims (4) that he was denied his Sixth Amendment right to the effective assistance of appellate counsel because his appellate counsel refused to argue that he had been represented by counsel in the case pending in the Clarence Town Court as opposed to the appeal of the prior case, (5) that he was illegally arrested because he was brought in for questioning on the missing-woman case by revoking his bail when there had been no probable cause to arrest him in connection with her disappearance, (6) that he was denied his Fourteenth Amendment right to due process and his Sixth Amendment right to compulsory process by the refusal of the trial court to grant him funds to hire a private investigator and expert witnesses pursuant to N Y County Law § 722(c) and (7) that the Magistrate Judge's ruling on his Fifth Amendment right to remain silent was erroneous.
Concerning petitioner's contention that he was denied his Sixth Amendment right to counsel because he had been represented by counsel at the time he was arrested in that (1) Hurley was representing him in a case that was pending in the Clarence Town Court in addition to the appeal in another case and (2) Hurley had asked to be notified when petitioner had been picked up. Objections to the RR at ¶¶ 5-8. In a petition for habeas corpus, the court may only consider whether the petitioner's federal constitutional rights, not his state constitutional rights, were violated. Coleman v. Thompson, 501 U.S. 722, 730 (1991). "Text, context and history of the Sixth Amendment lead to the conclusion that the framers were addressing themselves to judicial proceedings, where a person is obliged to defend himself in a process fraught with the technicalities and procedural niceties of the criminal law." United States Cone, 354 F.2d 119, 123 (2d Cir. 1965). There is no Sixth Amendment right to counsel at the time of arrest. United States v. Gouveia, 467 U.S. 180, 190 (1984). It is "firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him." Kirby v. Illinois, 406 U.S. 682, 688 (1972). Adversarial judicial criminal proceedings are commenced through a "formal charge, preliminary hearing, indictment, information, or arraignment." Id. at 689.
"The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, that marks the commencement of the 'criminal prosecutions' to which alone the explicit guarantees of the Sixth Amendment are applicable." Id. at 689-690.
The Sixth Amendment right to counsel is offense-specific, it "does not prohibit the questioning of an individual regarding other crimes, as to which the right has not yet attached." United States v. Mapp, 170 F.3d 328, (2d Cir. 1999). To "exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities." Maine v. Moulton, 474 U.S. 159, 180 (1985). "The concept that professional criminals have 'house counsel' because of prior escapades and that therefore Government agents knowing the identity of prior counsel have an obligation of constitutional or even ethical dimension to contact counsel before questioning them, is hardly appealing." United States v. Masullo, 489 F.2d 217, 223 (2d Cir. 1973).
At the time petitioner was questioned regarding the missing woman, formal criminal judicial proceedings had not yet been commenced against him in that matter and accordingly he had no right to counsel under the Sixth Amendment. However, petitioner has also raised a claim of ineffective assistance of both trial and appellate counsel based on their failure to rely on state constitutional law to support his denial-of-counsel claims. Objections to the RR at ¶¶ 8, 15. Accordingly, in examining his claim of ineffective assistance of counsel under the Sixth Amendment, this Court must also address the right to counsel under New York law.
"The New York Court of Appeals has consistently interpreted the right to counsel under the NewYork Constitution more broadly than the Supreme Court has interpreted the federal right to counsel." Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). At the time petitioner was arrested, the law of New York was that a defendant could not waive his right to counsel outside the presence an attorney, if the police knew that the defendant was represented by counsel on an unrelated pending charge, or if the officers knew of the unrelated pending charge and the defendant did in fact have counsel on such charge. People Bartolomeo, 53 N.Y.2d 225, 231 (1981) A defendant, however, does not have an absolute right to counsel simply because he is represented by counsel on an unrelated case which is on appeal. People v. Robles, 72 N.Y.2d 689, 695 (1988); People v. Colwell, 65 N.Y.2d 883, 885 (1985). The decision to have the advice or assistance of counsel rests with the client, not the lawyer. Bing, at 349.
Overruled by People v. Bing, 76 N.Y.2d 331 (1990).
Petitioner contends that he was deprived of the effective assistance of trial counsel based on Hurley's failure to seek to suppress evidence on the grounds that (1) he was representing petitioner in a case pending in Clarence Town Court and (2) that he had entered the underlying case by telling DeFranks to call him after petitioner had been arrested. Objections to the RR at ¶ 15. Petitioner has presented no evidence that Hurley did in fact represent him on a case that was pending in the Clarence Town Court at the time he was arrested or that the officers were aware of this. Furthermore, the Appellate Division stated that it had reviewed petitioner's pro se brief and did not find this contention to have any merit; accordingly, even if Hurley did represent petitioner in a pending case in the Clarence Town Court and the officers were aware of this, trial counsel's failure to raise this issue in the trial court did not result in any prejudice to petitioner. Although there is a factual dispute over whether Hurley did in fact ask to be notified when petitioner was arrested, the trial judge found that petitioner did not request an attorney after being informed of his rights and that, once he did, questioning ceased and petitioner was allowed to contact Hurley. In addition, even though the right to counsel may not be asserted by an attorney on the behalf of a defendant who has waived that right, this argument was in fact raised during trial by Hurley as memorialized by the stipulation with DeFranks.
Petitioner contends that he was deprived of the effective assistance of appellate counsel by the failure of his appellate attorney to rely on his contention that Hurley had been representing him on a case that was pending in the Clarence Town Court in addition to the appeal in another case. Objections to the RR at § 8. This contention is also without merit because, in addition to the above reasons, petitioner raised this issue himself on appeal in his pro se supplemental brief and, inasmuch as this issue was before the Appellate Division, he cannot be said to have suffered any prejudice by his appellate counsel's failure to raise it.
Petitioner was taken into custody pursuant to section 530.80 after the bailbondsmen had withdrawn his bond. Petitioner contends that such was an illegal arrest because he was brought in for questioning on the missing woman case through such revocation when there had been no probable cause to arrest him for her disappearance. Objections to the RR at 9-10.
"The deliberate use by the government of an administrative warrant for the purpose of gathering evidence in a criminal trial must meet stern resistance by the courts. The preliminary stages of a criminal proceeding must be pursued in strict obedience to the safeguards and restrictions of the Constitution and laws of the United States." Abel v. United States, 362 U.S. 217, 226 (1960). An administrative warrant must not be "employed as an instrument of criminal law enforcement to circumvent the latter's legal restrictions ***." Id. at 230. The applicable test to determine whether an administrative warrant had been improperly used to arrest the defendant is whether the decision to use an administrative warrant "was influenced by, and was carried out for, a purpose amassing evidence in the prosecution for crime." Ibid.
"[W]here an administrative warrant is readily obtainable against the subject of a law enforcement investigation, and where law enforcement lacks the probable cause necessary to secure a search or arrest warrant, or to effect a warrantless arrest, the temptation exists for police authorities to instigate an administrative arrest in hopes of securing otherwise unavailable contraband or incriminating evidence as the incidents of such an arrest. The courts have soundly and properly condemned such sham or pretext arrests. A pretext or sham administrative arrest for purposes of applying interrogation pressure upon an investigative suspect, where an opportunity for the intrusion would be otherwise unavailable, is no less to be condoned. People v. Santos, 368 N.Y.S.2d 130, 134 (Sup.Ct. N.Y. Co. 1975) citing Abel v. United States.
Other internal citations omitted.
Not all administrative arrests are prohibited however. Only those which are "instigated, initiated, directed, arranged, controlled and participated in by the police and which have as their primary purpose not the ostensible administrative function, but the furtherance of police investigation in a manner designed so as to avoid the constitutional requirements of probable cause. Otherwise stated, the test is whether the decision to proceed administratively was influenced by, and was carried out for, an otherwise constitutionally impermissible law enforcement function." Ibid.
"Internal citations omitted.
"[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 in his trial. Stone v. Powell, 428 U.S. 465, 482 (1976). A state prisoner is entitled to habeas corpus relief on the ground that he was denied full and fair litigation of his Fourth Amendment claims
"in only 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 v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
Even if a petitioner argues that the state court erroneously determined the Fourth Amendment claim, habeas corpus relief is not available simply because the "federal court may have reached a different result." Id. at 71. The focus is on the "existence and application of the corrective procedures" not on the "correctness of the outcome resulting from the application of adequate state court corrective procedures" because to do so "would be assuming, implicitly at least, that state courts were not responsible forums in which to bring constitutional claims***." Ibid.
"In all cases in which a state prisoner has defaulted [on] his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991).
The argument that petitioner's arrest was a "sham" or a "pretext" was not raised in the September 15, 1983 pre-trial motion to suppress under N.Y. Crim Proc. Law § 710.70 as required, although the facts underlying the manner of his arrest were noted. This argument was first raised in a motion to set aside the verdict pursuant to section 330.30 after petitioner had been convicted but before sentence was imposed. SCR December 31, 1984 Motion to Vacate. This argument was also raised on appeal to the Appellate Division, which stated: "Defendant's argument that he was in custody unsupported by probable cause was not raised before the hearing court and is not properly before us on this appeal." People v. Ballew, 555 N.Y.S.2d 949, 950 (App.Div. 4th Dep't 1990). However the Appellate Division then nonetheless proceeded to address this contention, stating that, "[i]n any event, defendant was properly arrested upon revocation of his bail bond." Ibid. Even had the Appellate Division not considered this claim on the merits notwithstanding the procedural default, habeas relief on this ground would stiIl be barred because failure to comply with the state procedural law for raising a federal constitutional claim is an "independent and adequate state ground of decision, sufficient to bar federal court review of the claim ***." Martimez v. Harris, 675 F.2d 51, 53 (2d Cir. 1982). Petitioner's claim that his arrest was a "sham" or "pretext," although procedurally defaulted, was nonetheless given a full and fair hearing in the state court and, accordingly, he is not entitled to habeas relief on such ground. Although this Court is barred from granting relief on this claim — because it appears on the record that petitioner's arrest may have been improper —, a certificate of probable cause to appeal on such ground shall issue pursuant to 28 U.S.C. § 2253(c)(1)(A).
A motion under section 710.70(3) is the exclusive method to challenge the admissibility of either tangible evidence or statements of the defendant. People v. Coleman, 66 N.Y.2d 269, 274 (1982); People v. Houston, 551 N.Y.2d 122, 123 (App.Div. 4th Dep't).
Internal citations omitted.
Internal citations omitted.
Petitioner argues that he was denied his Fourteenth Amendment right to due process and his Sixth Amendment right to compulsory process by the refusal of the trial court to grant him funds to hire a private investigator and expert witnesses to present evidence on soil analysis, fingerprint identification and the effects of alcohol and intoxication pursuant to N.Y. County Law § 722(c). Objections to the RR at ¶¶ 11-14. Upon a finding by the trial court that a defendant is in need of investigatory or expert services and is financially unable to obtain them, the court shall authorize defense counsel to obtain such services at public expense. N.Y. County Law § 722(c). Implicit in this provision is a finding by the court "that (1) the demanded services are necessary, and (2) defendant is financially unable to obtain them." People v. Pride, 360 N.Y.S.2d 581, 582 (Sup.Ct. West. Co.). It is not a requirement that a defendant be represented by assigned counsel to qualify for expert or investigatory funds; however an affidavit of need from the attorney is not sufficient and the defendant must personally submit an affidavit establishing the need. People v.Jackson, 363 N.Y.S.2d 288, (Co. Ct. Albany Co.). "The decision to appoint experts to assist a defendant is left to the sound discretion of the trial court, upon a defense showing of necessity and inability to afford the expense of such services." Johnson v. Harris, 682 F.2d 49, 51 (2d Cir. 1982).
Intemal citations omitted.
Petitioner has neither established nor even presented any evidence that failure to provide public funds to pay for investigators and expert witnesses resulted in the deprivation of a federal right. He does not contend that he was not allowed to utilize such investigators and expert witnesses, only that the state would not pay for them. The decision of the trial court not to grant petitioner funds at public expense is supported by the record. Although it is not dispositive, Petitioner had a retained attorney during the trial (paid for by his father) and petitioner did not submit an affidavit of indigency. Furthermore there was no showing that such services were necessary.
Finally, petitioner objects to the RR on the basis that Judge Heckman's decision that his Fifth Amendment right to be free from self-incrimination was not violated was incorrect. Objections to RR at ¶ 16. Upon a review of the suppression hearing the undersigned is satisfied that petitioner's Fifth Amendment right to be free from self-incrimination was not violated. The state court trial judge, who heard the testimony firsthand, specifically found that petitioner had been advised of his constitutional rights and that, as soon as he had requested an attorney, all questioning ceased. SCR September 28, 1984 Suppression Order at 10-11.
Accordingly it is hereby ORDERED that petitioner's objections to the RR are overruled, that the RR is adopted in its entirety, that the petition for habeas corpus is denied, that a certificate of probable cause to appeal is issued solely on the petitioner's Fourth Amendment claim that his arrest upon revocation of his bail was improper and that this case shall be closed in this Court.