Opinion
98-CV-8050 (JEW) 03-MISC-0066
August 21, 2003
MEMORANDUM, ORDER JUDGMENT
Petitioner seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. A hearing was held with petitioner present in person and, by consent, without counsel. For the reasons set forth in this Memorandum, Order and Judgment, the petition is denied.
I. Facts
On December 19, 1994, Undercover Officer ("UC") #22799, UC #27410, Sergeant Bellucci, and Officer Recupero conducted a "buy and bust" narcotics operation in Brooklyn. UC #22799 was to buy the narcotics; UC #27410 was to be UC #22799's "ghost," and Officer Recupero was to be the arresting officer.
UC #22799 approached two men, later identified as petitioner and Jose Rivera. UC # 22799 asked Rivera for drugs and handed him two prerecorded $5 bills. Petitioner reached into his pocket and handed the UC two plastic bags containing two vials of a substance later found to be crack cocaine. UC #22799 then left. Minutes later Officer Recupero and others arrested petitioner and Rivera. As Recupero approached, petitioner dropped numerous vials in plastic bags to the ground.
Evidence at trial included testimony by the police officers mentioned above. Petitioner testified at trial. Petitioner testified that he was buying drugs from Rivera and that Rivera threw the package containing the numerous crack vials as the police approached. The courtroom was sealed during testimony given by the undercover officers because of threats to their safety.
Petitioner was convicted of one count of criminal sale of a controlled substance in the third degree; two counts of criminal possession of a controlled substance in the third degree; and two counts of criminal possession of a controlled substance in the seventh degree. He was sentenced on August 8, 1995 as a second felony offender to concurrent terms of six to twelve years on the third degree sale and possession counts, and to concurrent one-year terms on the seventh degree possession counts.
In January 1997, petitioner moved pursuant to section 440 of the New York Criminal Procedure Law. He alleged the discovery of new evidence, In particular, petitioner submitted an affidavit by Jose Rivera, also known as Luis Mendez, in which Rivera stated that he, and not petitioner, was selling crack cocaine. Rivera also claims that the arresting officers took money and drugs out of his pockets and put them in petitioner's pocket. The trial court denied the section 440 motion in a written decision, but did not conduct an evidentiary hearing. See People v. Bravo, No. 15607/94 (N.Y.Sup. Ct, Mar. 10, 1997). The court held that the "newly-discovered" information could have been presented at trial and that the information would not have affected the outcome of the trial. See id. at 1.
Petitioner sought and was granted leave to appeal the trial court's section 440 ruling to the Appellate Division, Second Department. Petitioner also appealed his conviction to the Appellate Division, making the following claims: 1) the trial court erred in sealing the courtroom during the testimony of UC # 22799; and 2) the trial court's "reasonable doubt" instruction shifted the burden to the defense.
On October 20, 1997, the Appellate Division affirmed both the judgment of conviction and the order of the trial court denying petitioner's section 440 motion. See People v. Bravo, 243 A.D.2d 640, 665 N.Y.S.2d 523 (N.Y.App.Div.2d Dep't 1997). The Appellate Division held that the trial court was justified in closing the courtroom during the testimony of the undercover officer in light of the danger she would face if her identity became known. See id. The court noted that the reasonable doubt claim was unpreserved for appellate review and that in any event, the language of the challenged charge was specifically approved by the Court of Appeals. See id. Finally, the Appellate Division upheld the trial court's denial of petitioner's section 440 motion for substantially the reasons set forth in the trial court's opinion. See id. Petitioner sought leave to appeal the Appellate Division's decision from the Court of Appeals. Leave was denied. See People v. Bravo, 91 N.Y.2d 869, 691 N.E.2d 639 (N.Y. 1997) (Kaye, C.J.).
II. Habeas Corpus Petition
In December 1998, petitioner filed a timely petition for a writ of habeas corpus. In it, he makes four claims:
1) the trial court's decision to close the courtroom during the undercover officer's testimony violated petitioner's Sixth Amendment rights;
2) the affidavit of Luis Mendez a/k/a Jose Rivera establishes that petitioner is innocent;
3) the "reasonable doubt" instruction impermissibly shifted the burden to the defense; and
4) petitioner's trial and appellate counsel were ineffective.
III. Law
A. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). See Price v. Vincent, 155 L.Ed.2d 877, 885-86 (2003).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v, Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
B. Exhaustion
As respondent correctly notes, petitioner's fourth claim for ineffective assistance of trial and appellate counsel is unexhausted. Although he has already filed a section 440 motion, he could file another one alleging ineffective assistance of counsel. Such a motion could be summarily denied because no ineffective assistance of trial counsel argument was made in the first 440 motion; however, the trial court could in its discretion reach the merits in the interest of justice. See N.Y. Crim. Proc. Law § 440.10(3)(c). Petitioner also has a vehicle for raising his ineffective assistance of appellate counsel claim; namely, a petition for a writ of error coram nobis.
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en bane).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."), hi addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Claims
A. Closure of the Courtroom
Petitioner reiterates the argument made on direct appeal. He objects to the closure of the courtroom during the testimony of the undercover officer. He concedes that his attorney did not object to the closure at the time. See Habeas Corpus Petition, Addendum to Ground One, at 3. While petitioner claims his Sixth Amendment rights were violated, he does not claim that he was prejudiced by the closure.
The Sixth and Fourteenth Amendments guarantee an accused criminal a right to a public trial. "The requirement of a public trial is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned, and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions, . . . In addition to ensuring that judge and prosecutor carry out their duties responsibly, a public trial encourages witnesses to come forward and discourages perjury." Waller v, Georgia, 467 U.S. 39 (quotation and footnotes omitted). The right to a public trial is not absolute, however, and it may be limited under appropriate circumstances. The Supreme Court has held that the "party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Waller, 467 U.S. at 48.
In this case, petitioner objects to the fact that the court was closed during the testimony of UC #22799. Before UC #22799 testified, the prosecutor established that the officer had been working undercover for fifteen months and that testifying in an open courtroom would put her in danger. See Transcript ("Tr.") of June 20-22, 1995, at 7, The trial court after a hearing found UC # 22799' s fear to be well-founded:
Let the record indicate the Court finds that the officer is an undercover officer who is presently working in that capacity; that there are pending cases in her capacity; that she has genuine fear for her safety; that appropriate safeguards have been taken to protect that safety; that testifying in this matter in open court would provide some risks which are genuine to her safety, particularly in the area of the crime site in this case.Id. at 8. The court then ordered the courtroom to be closed. Petitioner's counsel did not object. Evidence taken by the court shows there was no appreciable exclusion since petitioner's parents arrived late.
The court was also closed during UC #27410's testimony. This claim was not presented on direct appeal and is now procedurally barred. In any event the claim is without merit. The hearing established essentially the same grounds as for UC # 22799.
The trial court's decisions were reasonable. Courtrooms are often closed where a witness's safety would be jeopardized by testifying in open court. Petitioner's counsel apparently recognized this fact by refusing to object.
The Appellate Division affirmed the trial court's decision to close the courtroom. Nothing indicates that this decision was contrary to or an unreasonable application of clearly-established Supreme Court precedent,
B. Actual Innocence
Petitioner argues that the Rivera affidavit constitutes newly-discovered evidence that exonerates him. According to petitioner, the affidavit shows that he is factually innocent. Therefore, he maintains, he is entitled to habeas corpus relief.
The Supreme Court has held that a claim of actual innocence based on newly-discovered evidence may be used to excuse a procedural error and allow a court to address an underlying independent constitutional claim. See Herrera v. Collins, 506 U.S. 390, 404 (1993). Habeas corpus review does not extend to "freestanding claims of actual innocence." See id. at 405, A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v, Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned `"not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
Petitioner's claim of actual innocence, standing alone, is not cognizable on habeas review. Moreover, unlike the petitioner in Herrera, the instant petitioner had his claim of newly-discovered evidence considered by the State court (both the trial court and Appellate Division considered the claim). Both agreed that the claim was barred and lacked merit. Their decisions are not contrary to nor unreasonable applications of clearly-established federal law.
Although the court is precluded from examining the actual innocence claim, it notes that the Rivera affidavit is highly suspect. The affidavit states that the arresting officers planted evidence by taking money and drugs out of Rivera's pocket and putting them in petitioner's pocket. Petitioner testified at trial, and made no such allegation. See Tr. of June 20-22, 1995, at 155-56.
The trial court in the 440 application relied upon the fact that petitioner's trial testimony was inconsistent with the "newly discovered evidence." See Opinion of March 10, 1997. In any event, the court held, with some merit, that it should have been known to petitioner at the time of trial. See id.
C. Reasonable Doubt
Petitioner contends that the trial court's "reasonable doubt" charge impermissibly shifted the burden to the defense. The language to which petitioner objects is as follows:
The doubt, to be reasonable doubt, should be one which a reasonable and fair person acting in a matter of this importance would entertain because of the evidence or because of the lack or insufficiency of the evidence.
[. . .]
If after you've [considered all of the evidence in the case], you then feel uncertain and not fully convinced of the Defendant's guilt, and you are satisfied that in entertaining such a doubt, you are acting as a reasonable person should act in a matter of this importance, then that is a reasonable doubt of which the Defendant is entitled to benefit.
Tr. of June 20-22, 1995, at 275-76.
Petitioner's claim lacks merit. The first paragraph to which petitioner objects was specifically upheld by the Court of Appeals. See People v. Cubino, 88 N.Y.2d 998, 1000 (N.Y. 1996). The second paragraph is similarly unobjectionable. It merely states that the defendant is only entitled to a not guilty verdict if the doubt which the jury harbors is a reasonable one. The decision of the Appellate Division to uphold this language is neither contrary to nor an unreasonable application of clearly-established federal law.
The first paragraph is one better omitted. It left the jury with a clear notion of its duty, however. It is not much worse than the standard federal definition in this circuit.
D. Ineffective Assistance of Counsel
Petitioner claims the ineffective assistance of appellate and trial counsel. In particular, he claims that his appellate counsel was ineffective for not raising ineffectiveness of trial counsel on appeal. Trial counsel, in turn, was purportedly ineffective for failing to preserve issues for appeal and for not subpoenaing Jose Rivera (petitioner mistakenly refers to Rivera as his "co-defendant" although Rivera was not tried with petitioner).
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. This right to counsel is "the right to effective assistance of counsel," McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Petitioner's trial counsel appears not to have been ineffective under Strickland and its progeny. His decision not to call Rivera was a matter of trial strategy, and could have been influenced by a host of factors. As noted above, the information provided by Rivera in the affidavit conflicts with petitioner's own trial testimony. Moreover, trial counsel was not ineffective for failing to preserve arguments for appeal, such as his failure to object to the closing of the courtroom. As noted, any objection would have been fruitless. Moreover, nothing indicates that the outcome of the trial would have been different had trial counsel pursued an alternative strategy. If trial counsel was not ineffective, it follows that appellate counsel would not be ineffective for failing to raise an ineffectiveness of trial counsel argument on direct appeal.
This issue of ineffectiveness is not exhausted, never having been raised in the state court by a 440 motion at the trial court level or a coram nobis proceeding in the Appellate Division. Having considered the matter, the petitioner has withdrawn this claim in order to proceed promptly in the state court. The court did not advise petitioner as to what course of action he should take.
V. Conclusion
The petition for a writ of habeas corpus is dismissed as to all issues now pending after withdrawal of the ineffectiveness claim.
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability maybe granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. A certificate of appealability is not granted with respect to any of petitioner's present claims.
Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
SO ORDERED.