Opinion
03 Civ. 5391 (DLC) (GWG).
June 13, 2005
REPORT AND RECOMMENDATION
Shawn Brown, proceeding pro se, brings this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Following a jury trial in New York State Supreme Court, New York County, Brown was convicted of Robbery in the Third Degree and Grand Larceny in the Fourth Degree. He was sentenced as a persistent felony offender to two concurrent terms of 15 years to life in state prison. He is currently incarcerated at the Green Haven Correctional Facility in Stormville, New York pursuant to that judgment. For the reasons stated below, the petition should be denied.
I. BACKGROUND
The facts of this case arise out of a robbery of a cab driver that occurred in the early morning hours of August 6, 1998. Prior to trial, a suppression hearing was held to determine the admissibility of Brown's statements to police and identification evidence. The motion to suppress was denied in part and granted in part. No issues related to this hearing have been raised in this petition.
A. Trial and Verdict
The following testimony was presented at trial:
Edward Boadi was working as a livery cab driver the night of August 5, 1998. (Boadi: Tr. 240, 245-46). At about 2 a.m. on August 6, he was driving north on Third Avenue between 115th and 116th Streets in Manhattan when a black male in a red cap, a red T-shirt, and jeans flagged him down. (Boadi: Tr. 248-49, 277). In court, Boadi identified that person as Brown. (Boadi: Tr. 249-50, 258, 260). Brown approached the driver's side of the cab and Boadi instructed him to go around to the other side because the rear driver's side door did not work. (Boadi: Tr. 249-51, 285-87). Brown then reached into the open window and grabbed $40 in cash out of Boadi's left breast pocket, tearing his shirt. (Boadi: Tr. 247-48, 251-52, 260-64, 271-73, 282-85).
Brown walked away from the cab towards 115th Street clutching the money in his fist. (Boadi: Tr. 252, 289-90). Brown was saying over his shoulder, "Get out, get out, I'll blow your fuck'n head off" as he walked away. (Boadi: Tr. 252-53). Boadi did not get out of the cab and quickly drove towards a nearby police station. (Boadi: Tr. 253-54). Boadi stopped two police officers by blowing his horn, then got out of his cab and told the officers he had been robbed. (Boadi: Tr. 254-56, 278-79, 293-95). The officers put Boadi into their car to return to the location of the robbery to see if they could find the perpetrator. (Boadi: Tr. 256-57). As they turned left onto 110th Street from Third Avenue, Boadi saw Brown about two blocks away walking towards Park Avenue and identified him to the officers. (Boadi: Tr. 257-58, 279).
On cross-examination, Boadi acknowledged that he was often "ripped off" by passengers but that he had never reported any incident to the police before. (Boadi: Tr. 280-81). He testified that he did not carry anything in the car to protect himself and that he did not remember reaching under his seat in a manner threatening to Brown. (Boadi: Tr. 281-82, 287). He admitted that when he saw the police stop Brown, he did not see any money in Brown's hands and that, although the police looked for money on Brown, they did not find any. (Boadi: Tr. 291-93).
Police Officer Stephen Viola was with his partner in an unmarked police car in front of the 23rd Precinct at around 2 a.m. on August 6, 1998 when Boadi pulled up behind the officers, honking his horn and waving his arms. (Viola: Tr. 301-03). The officers stopped and Boadi approached them. (Viola: Tr. 304). Officer Viola noticed that the left breast pocket of Boadi's shirt was ripped. (Viola: Tr. 304). The officers told Boadi to get into their car and they drove north on Third Avenue. (Viola: Tr. 305). As they turned onto 110th Street, they noticed an individual wearing a red baseball cap and a red shirt about a block-and-a-half away. (Viola: Tr. 305-07). They stopped this individual on East 110th Street and Park Avenue. (Viola: Tr. 307, 309). Officer Viola identified Brown as the individual they had stopped. (Viola: Tr. 307). Officer Viola searched Brown and looked around the area where Brown was apprehended and found no money at all. (Viola: Tr. 309-10, 312-13). After Brown was taken to the precinct, Officer Viola and Boadi returned to conduct another search. (Viola: Tr. 313-14). No weapon or money was ever recovered. (Viola: Tr. 315).
Detective John D'Alessio testified that he took a statement from Brown at approximately 11 a.m. on August 6, 1998. (D'Alessio: Tr. 330-31). Prior to asking Brown any questions, Detective D'Alessio read Brown his Miranda rights and Brown initialed each response and signed a preprinted form. (D'Alessio: Tr. 333-36). Detective D'Alessio then asked Brown what had happened and Brown answered that after leaving a jazz festival at around 12:30 a.m., he was headed down the east side to visit a girl. (D'Alessio: Tr. 336). When asked, Brown stated that he did not know the girl's name or address. (D'Alessio: Tr. 336-37). Then Brown said that he hailed a cab at 109th Street and Third Avenue to go to his aunt's house on 126th Street. (D'Alessio: Tr. 337). He said that he had $30 to $40 on him to pay the fare. (D'Alessio: Tr. 337). According to Brown, he got in a cab, told the driver where he wanted to go, and the driver requested a $10 fare. (D'Alessio: Tr. 337). As they drove north, Brown got in an argument with the driver over the fare. (D'Alessio: Tr. 337). When the cab reached 115th or 116th Street, Brown gave the driver $5 and got out of the cab. (D'Alessio: Tr. 337). The driver was yelling at Brown and reached under his seat. (D'Alessio: Tr. 338). Brown thought the driver was reaching for a weapon so he ran down the street. (D'Alessio: Tr. 338). Brown told Detective D'Alessio that when he was arrested, he did not have any money on him and that he did not know what had happened to the money he had been carrying. (D'Alessio: Tr. 338). Brown declined to make a written statement. (D'Alessio: Tr. 339).
Detective D'Alessio used the notes he took during this interview to make a more complete written record of Brown's statement. (D'Alessio: Tr. 339, 344-49). Defense counsel had him read both his notes and his more complete written version of Brown's statement to the jury. (D'Alessio: Tr. 348-50). Neither the detective's notes, the statement as he recorded it in writing, nor another form he prepared (referred to as a "DD5") contained Brown's statement that he had money on him when he got in the cab. (D'Alessio: Tr. 351-52, 354). Detective D'Alessio testified that he was not aware of the amount of money taken from the victim until after interviewing Brown. (D'Alessio: Tr. 353).
Defense counsel and the prosecutor stipulated that if Officer Viola were recalled to testify, he would testify that when he approached Brown, Brown asked what he had done and Officer Viola told him that he was accused of robbing a cab driver. (Tr. 370). When Boadi got out of the police car, Brown stated, "I didn't rob that nigger, we had an argument. I didn't rob that nigger." (Tr. 370-71). The defense presented no other evidence.
On December 3, 1998, the jury returned a verdict finding Brown guilty of Robbery in the Third Degree and Grand Larceny in the Fourth Degree. (Tr. 475-77).
B. Sentencing
On January 12, 1999, the court held a hearing to determine whether Brown should be sentenced as a discretionary persistent felony offender. (Sentencing: Tr. 2-3). Brown's prior convictions relevant to that status were a 1990 conviction for Robbery in the Second Degree, for which Brown was sentenced to four to eight years in prison, and a 1995 conviction for Criminal Possession of Stolen Property in the Fourth Degree, for which Brown was sentenced to one-and-a-half to three years in prison. (Sentencing: Tr. 3).
The defense noted that Brown's mother died when he was 16 years old and that he had been in and out of prison ever since. (Sentencing: Tr. 7-9). Defense counsel also emphasized that most of Brown's prior crimes were petty and did not involve him carrying a weapon or injuring anyone. (Sentencing: Tr. 8, 10-12). Based also on the non-violent nature of the instant conviction, defense counsel argued that the court should sentence Brown to three-and-a-half to seven years instead of the 15-to-life sentence he faced as a persistent felony offender. (Sentencing: Tr. 13-18). Brown expressed his remorse and acknowledged that he had problems that he needed help addressing. (Sentencing: Tr. 20-22).
Defense counsel also introduced a presentence memorandum prepared by his office. (Sentencing: Tr. 5, 7). The social worker who prepared the memorandum, Kevin O'Brien, described Brown's "largely dysfunctional family" and the effect of the death of Brown's mother. (Sentencing: Tr. 33-35). He also described Brown's drug addiction and suggested that professional treatment, which was not available within the Department of Corrections, would be appropriate. (Sentencing: Tr. 35-38).
The prosecutor emphasized discrepancies between what Brown had told the probation officer and what he had told O'Brien. (Sentencing: Tr. 22-26). She also referred to his criminal record and argued that because Brown had been unable to stay out of jail for more than a few months at a time, he should be sentenced as a persistent felony offender to 15 years to life in prison. (Sentencing: Tr. 26-31). Defense counsel attributed the discrepancies between what Brown told the probation officer and what he told O'Brien to the fact that the probation interview was short and that Brown was embarrassed to admit his problems to the probation officer. (Sentencing: Tr. 16-17, 32-33).
The court found that Brown began his "career" with the criminal justice system when he was 16 years old and detailed Brown's prior arrests and convictions. (Sentencing: Tr. 39-42). In describing the trial over which he presided, the judge observed that he "saw terror in [Boadi's] eyes." (Sentencing: Tr. 43). He continued, "[I]n my view [Brown] is a terrorist. He's an urban terrorist." (Sentencing: Tr. 43-44). The court found that substantial jail time had had "no positive effect" on Brown and that "[o]n the contrary, he has persisted in preying on his victims and robbing them and terrorizing them." (Sentencing: Tr. 44). The instant case, the judge found, "involves violence and the threat of deadly force in which [Brown] threatened to kill the victim." (Sentencing: Tr. 47). The judge added that he did not believe that Brown "feels one degree of shame and guilt." (Sentencing: Tr. 45). Based on these findings, the trial court held that Brown was a persistent felony offender under N.Y. Penal Law § 70.10 and sentenced him to two concurrent sentences of 15 years to life in prison. (Sentencing: Tr. 46-48).
C. Direct Appeal
In April 2000, Brown appealed his conviction to the Appellate Division, First Department, presenting the following questions:
1. Whether [Brown] was denied his due process right to equal protection and a fair trial when the court erroneously denied [Brown's] Batson motion and accepted as non-pretextual the prosecutor's claim that lack of employment was the only reason she excluded the sole African-American on the jury panel. U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I §§ 2, 6, 11; [N.Y. Crim. Proc. Law ("C.P.L.") §] 270.25(1).
2. Whether where soon after the alleged robbery no money was found on [Brown], and the officer testified, but omitted from all records that [Brown] said he had $30 to $40, the same amount allegedly robbed, then [Brown's] conviction for third-degree robbery and fourth-degree larceny was against the weight of the credible evidence. People v. Bleakley, 69 N.Y.2d 490 (1987); C.P.L. § 470.15(5).
3. Whether the trial court's Sandoval ruling denied [Brown] due process since it effectively precluded him from testifying. U.S. Const., Amends[.] VI, XIV; N.Y. Const., Art. I § 6.
4. Whether [Brown's] sentence of 15 years to life as a discretionary persistent felony offender should be vacated and the matter remitted for re-sentencing where [Brown] was convicted of robbing only $40, without a weapon or injury, and because the court failed to give adequate consideration to [Brown's] social history. [N.Y. Penal Law] § 70.10; C.P.L. § 400.20.
Brief for Defendant-Appellant, dated April 2000 ("Pet. App. Brief") (reproduced as Ex. A to Answer and Appendix in Opposition to Petition for a Writ of Habeas Corpus, filed October 24, 2003 (Docket #7) ("Answer")), at 2.
On June 26, 2000, the United States Supreme Court decidedApprendi v. New Jersey, 530 U.S. 466, 490 (2000), holding that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Thereafter, Brown's appellate counsel submitted a supplemental brief to the Appellate Division, arguing:
[Brown's] sentence of fifteen years to life imprisonment as a discretionary persistent felon pursuant to [N.Y. Penal Law] § 70.10 and C.P.L. § 400.20 violates his rights to notice of the charges against him, to a jury trial and to due process of law, as the enhanced sentence was premised upon uncharged facts found by the trial court by a mere preponderance of the evidence (U.S. Const., Amends. VI, XIV; N.Y. Const., Art. I, §§ 2, 6, Art. 6, § 18; Apprendi v. New Jersey, 120 S. Ct. 2348 (2000)).
Supplemental Brief for Defendant-Appellant, dated October 2000 (reproduced as Ex. B to Answer) ("Pet. Supp. App. Brief"), at 2.
On May 24, 2001, the Appellate Division affirmed Brown's conviction and sentence. People v. Brown, 283 A.D.2d 312 (1st Dep't 2001). The Appellate Division held that (1) the verdict was not against the weight of the evidence; (2) Brown's Batson application was properly denied because the prosecutor provided race-neutral, non-pretextual reasons for her peremptory challenge; (3) the court's Sandoval ruling was a proper exercise of discretion; and (4) Brown was properly adjudicated as a persistent felony offender. Id. at 312-13. One judge dissented from the decision with respect to Brown's sentence, stating, "To equate, for sentencing purposes, what can be described as an aggravated pickpocketing with murder constitutes an improvident exercise of discretion." Id. at 314.
Brown sought leave to appeal to the New York Court of Appeals, which was denied on July 26, 2001. People v. Brown, 96 N.Y.2d 899 (2001).
D. Motion to Vacate
On May 2, 2002 Brown brought a pro se motion to vacate his conviction under C.P.L. § 440.10 in New York County Supreme Court. See Notice of Motion to Vacate Judgment, dated May 2, 2002 (reproduced as Ex. E to Answer) ("440.10 Notice"). Brown argued that (1) the evidence before the Grand Jury was legally insufficient; (2) the evidence adduced at trial was insufficient to prove his guilt beyond a reasonable doubt; (3) prejudicial comments made by the prosecutor during her summation had a substantial and injurious effect on the jury's verdict; and (4) the indictment should be dismissed because it did not contain all of the elements of the crime charged. Memorandum of Law in Support of a Motion to Vacate the Judgment, undated (annexed to 440.10 Notice) ("Pet. 440.10 Mem."), at 1-14.
The trial court denied this motion. Decision, dated July 10, 2002 and September 30, 2002 (reproduced as Ex. F to Answer) ("440.10 Decision"), at 1. Leave to appeal to the Appellate Division was denied on February 25, 2003. Decision, dated February 25, 2003 (reproduced as Ex. I to Answer) ("440.10 Denial of Leave to Appeal"), at 1.
E. Writ of Error Coram Nobis
At the same time he filed his motion to vacate, Brown also filed a pro se application for a writ of error coram nobis claiming ineffective assistance of appellate counsel. See Writ of Error Coram Nobis, dated May 3, 2002 (reproduced as Ex. N to Supplemental Answer and Appendix, filed February 13, 2004 (Docket #11) ("Supp. Answer")) ("Coram Nobis App."), at 1. In Brown's papers filed in support of his application for writ of error coram nobis, however, he did not set forth the issues that he faulted counsel for failing to raise. Instead, he directed the reader to "see" an unidentified "memorandum of law," id. — presumably referring to the memorandum of law filed in support of his motion to vacate. As it turned, however, the coram nobis application was not handled by the same Assistant District Attorney who handled the motion to vacate. Thus, the prosecution opposed Brown's coram nobis application on the ground that Brown had made reference to a memorandum of law that was not received by the prosecution or the court and thus that Brown had not identified any issues that his appellate counsel had failed to raise. See Affirmation in Opposition to Defendant's Petition for Writ of Error Coram Nobis, dated August 12, 2002 (reproduced as Ex. O to Supp. Answer) ("Coram Nobis Opp."), ¶ 7. The Appellate Division issued a summary denial on May 29, 2003. See Order, dated May 29, 2003 (reproduced as Ex. P to Supp. Answer) ("Coram Nobis Decision"), at 1.
F. Instant Habeas Petition
Brown timely submitted the instant petition for a writ of habeas corpus to this Court's Pro Se Office on June 27, 2003.See Petition Under 28 USC § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed July 22, 2003 (Docket #1) ("Petition"). In it, he raises the four grounds raised in his direct appeal, the four grounds raised in his pro se motion to vacate, and the one ground raised in his pro se coram nobis application. See id. at 4 (front and back). After respondent opposed the petition, see Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed October 24, 2003 (Docket #6) ("Opp. Mem."), this Court issued an Order directing the respondent to respond to certain points that he had not addressed in his original brief in opposition — apparently because the points were listed on the back of one of the pages of the petition. See Order, filed January 9, 2004 (Docket #10). The respondent submitted his supplemental brief on February 13, 2004. See Supplemental Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed February 13, 2004 (Docket #12) ("Supp. Opp. Mem.").
II. APPLICABLE LEGAL PRINCIPLES
A. Law Governing Petitions for Habeas Corpus Under 28 U.S.C. § 2254
A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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). For a claim to be adjudicated "on the merits" within the meaning of 28 U.S.C. § 2254(d), the state court must base its decision on "the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001). It is not necessary for the state court to refer to the federal aspect of a claim or to any federal law for the deferential standard to apply. Id. at 312. Moreover, a state court determination of a factual issue is "presumed to be correct" and that presumption may be rebutted only "by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). Williams also held that habeas relief is available under the "unreasonable application" clause only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable."Id. at 409.
In addition, under 28 U.S.C. § 2254(a), federal habeas review is available for a state prisoner "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Errors of state law are not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Thus, to be entitled to habeas relief, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See id. at 68.
B. Exhaustion
Before a federal court may consider the merits of a habeas claim, a petitioner is first required to exhaust his available state court remedies. See 28 U.S.C. § 2254(b)(1) ("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 unless it appears that . . . the applicant has exhausted the remedies available in the courts of the State. . . .");accord Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-91 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). To exhaust a habeas claim, a petitioner is required to have presented the federal nature of each claim to all levels of the state appellate courts. See, e.g., Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Picard v. Connor, 404 U.S. 270, 275-76 (1971); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991); Daye, 696 F.2d at 191.
C. Procedural Default
Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). A procedural default "will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted); accord Dretke v. Haley, 541 U.S. 386, 393 (2004); Coleman, 501 U.S. at 749-50; Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995); see also Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas."). The bar on habeas review resulting from a procedural default applies even where the state court issues an alternative holding addressing the procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).
III. DISCUSSION
As noted above, Brown's habeas petition raises all nine of the claims that he raised either on direct appeal, in his motion to vacate under C.P.L. § 440.10, or in his writ of error coram nobis. We discuss each of the nine claims below.
With respect to the four claims made in his section 440 motion (sections III.A, B. F and G below), the respondent argues that all are procedurally barred for various reasons, including Brown's failure to comply with New York's contemporary objection rule and his failure to raise the claims on direct appeal. Supp. Opp. Mem. at 4-9, 12-14, 15-16; see generally C.P.L. §§ 470.05(2), 440.10(2)(c). In their response to the original 440 petition, the prosecution had raised some — though not all — of these arguments but had also addressed each claim on the merits.See Memorandum of Law in Opposition to Defendant's Motion to Vacate the Judgment, undated (reproduced in Ex. L to Supp. Answer) ("440.10 Opp. Mem."). The trial court simply denied the motion without opinion, see 440.10 Decision, and leave to appeal was denied also without opinion, see 440.10 Denial of Leave to Appeal. Thus, the state court did not make clear whether it relied upon a procedural bar or adjudicated the claim on the merits.
Young's claims are arguably procedurally barred under Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993). But given recent questioning of the vitality of Quirama, see, e.g., Lake v. Greiner, 2003 WL 21508326, at *3 (E.D.N.Y. June 16, 2003);Naranjo v. Filion, 2003 WL 1900867, at *15-*16 (S.D.N.Y. Apr. 16, 2003) (Report and Recommendation), adopted by, Order, filed July 2, 2003 (Docket #14 in 02 Civ. 5449), this Court will skip discussion of the procedural bar and simply proceed to the merits as the underlying issues are "easily resolvable against" him. Lambrix v. Singletary, 520 U.S. 518, 525 (1997); see generally Dunham v. Travis, 313 F.3d 724, 729-30 (2d Cir. 2002).
A. Insufficiency of the Evidence Before the Grand Jury
Brown claims that he is entitled to habeas relief because the evidence before the grand jury was legally insufficient. See Petition at 4 (back). He initially raised this claim in his motion to vacate under C.P.L. § 440.10, arguing — based on the trial testimony of Boadi and Officer Viola — that since no money was ever recovered, all of the elements of the crimes had not been established. See Pet. 440.10 Mem. at 1-4.
The only federal law cited by Brown in state court was the Fourteenth Amendment. See Pet. 440.10 Mem. at 1. However, the Fifth Amendment right to indictment by grand jury has not been incorporated into the Fourteenth Amendment so as to be applicable against the states. See, e.g., LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002) (citing Branzburg v. Hayes, 408 U.S. 665, 668 n. 25 (1972)); Fields v. Soloff, 920 F.2d 1114, 1118 (2d Cir. 1990); see also Staley v. Greiner, 2003 WL 470568, at *11 (S.D.N.Y. Feb. 6, 2003) (no federal constitutional right to be tried in a state criminal proceeding based on an indictment). Although the New York Constitution provides a right to grand jury indictment, N.Y. Const. art. I, § 6, any violation of that provision is purely a matter of state law not subject to federal habeas review. See generally Estelle, 502 U.S. at 67-68.
B. Insufficiency of the Indictment
Brown also maintains that the indictment did not contain all of the essential elements of the crimes charged and thus that it should have been dismissed. Petition at 4 (back). It appears that this claim is premised exclusively on the fact that the indictment charged that Brown had stolen "property" (Tr. 440, 443), whereas the trial judge in his instructions had stated that the property Brown was accused of stealing was "money" (Tr. 441-42). See Pet. 440.10 Mem. at 14.
A challenge to the sufficiency of an indictment does not raise a federal claim for the reasons just stated, however. As for any claim that Brown did not receive notice of the charges against him, neither Robbery in the Third Degree nor Grand Larceny in the Fourth Degree requires a specification of the property stolen. See N.Y. Penal Law § 155.30(5) ("A person is guilty of grand larceny in the fourth degree when he steals property and when [t]he property, regardless of its nature and value, is taken from the person of another."); id. § 160.05 ("A person is guilty of robbery in the third degree when he forcibly steals property."). There is no bar to a trial judge marshaling evidence in a neutral manner to explain how the evidence at trial relates to the charges in the indictment. Thus, the trial court properly specified that the property Brown was being charged with stealing was the money taken from Boadi.
C. Batson Challenge
Brown argues that the prosecutor's use of a peremptory challenge to strike the only African-American juror violatedBatson v. Kentucky, 476 U.S. 79 (1986). Petition at 4. UnderBatson, there is a three-step process for determining whether peremptory challenges have been exercised discriminatorily:
First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination.Hernandez v. New York, 500 U.S. 352, 358-59 (1991) (citingBatson, 476 U.S. at 96-98).
During the first round of jury selection in this case, Randy Fox, an African-American prospective juror, told the court that she was "currently unemployed" and a full-time undergraduate student. (Voir Dire: Tr. 62). Fox stated that she was a second-year human resources major and that she lived with her mother, who was a clerical worker. (Voir Dire: Tr. 68). When the prosecutor exercised a peremptory challenge against Fox, defense counsel made a Batson objection, pointing out that Ms. Fox was the only African-American on the panel. (Voir Dire: Tr. 97). The court stated that it "was not sure" that defense counsel had stated a prima facie case but nonetheless required the prosecutor to articulate a race-neutral reason for her challenge. (Voir Dire: Tr. 97). The prosecutor responded that she struck Fox because she was still a student, was young, and did not have work experience. (Voir Dire: Tr. 97-98). She explained that since the victim was a working man, she wanted jurors who would be able to identify with that quality. (Voir Dire: Tr. 98). Defense counsel argued that striking a juror based on employment status was not legitimate in this case because it was not relevant to the facts of the case. (Voir Dire: Tr. 98-99). The court ruled that Brown had not "sustained [his] burden" and denied the challenge. (Voir Dire: Tr. 99).
On appeal, Brown argued that the proffered reason for the strike — Fox's employment status — had no bearing on her ability to be a fair and impartial juror and the prosecutor had no basis for the assumptions she made about Fox. Pet. App. Brief at 16-22. Brown also pointed out that the prosecutor did not strike another juror who stated that she had four children and that her boyfriend worked as a teacher and, additionally, that a retired man sat on the jury. Id. at 6-7; 21-22.
The Appellate Division considered this claim on the merits, holding:
Defendant's application pursuant to Batson v. Kentucky, ( 476 US 79) was properly denied. The record supports the court's finding that the prosecutor provided race-neutral, nonpretextual reasons for the peremptory challenge in question and such findings are entitled to great deference on appeal (see People v. Hernandez, 75 NY2d 350, affd 500 US 352). The prosecutor's stated desire to avoid jurors without work experience was applied consistently without regard to race, and the prosecutor was not required to show that the peremptory challenge was specifically related to the facts of the case (People v. Wint, 237 AD2d 195, lv denied 89 NY2d 1103).Brown, 283 A.D.2d at 312-13. As Brown presented the federal constitutional nature of his claim to the state courts and sought leave to appeal from the state's highest court, this claim is properly exhausted. See Duncan, 513 U.S. at 365-66.
In Purkett v. Elem, 514 U.S. 765, 768 (1995), the Supreme Court noted that the second and third steps of the Batson inquiry must be distinguished. At step two, the prosecutor may provide any "legitimate reason" for exercising a particular peremptory strike that on its face "does not deny equal protection." Id. at 769. The prosecutor's stated reason at this step need not be persuasive or even plausible. Id. at 768;Hernandez, 500 U.S. at 360. In contrast, the focus of step three is on the persuasiveness of the prosecution's race-neutral explanation for the challenge which "'largely will turn on [an] evaluation of credibility.'" Hernandez, 500 U.S. at 365 (quoting Batson, 476 U.S. at 98 n. 21); accord Purkett, 514 U.S. at 768 ("At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination.").
With regard to juror Fox, the prosecutor's proffered reasons for exercising a peremptory challenge were that Fox was still a student, young, and did not have work experience. (Voir Dire: Tr. 97-98). In response to the prosecutor's explanation, defense counsel argued that basing the strike on Fox's status as "currently unemployed" was pretextual since the fact that the victim was employed had no bearing on whether or not he was robbed. (Voir Dire: Tr. 98-99). In finding that Brown had not sustained his burden (Voir Dire: Tr. 99), the trial court implicitly found that the prosecutor's stated reasons for the challenge were nonpretextual. The Appellate Division held that this determination was supported by the record and entitled to deference. Brown, 283 A.D.2d at 312. Further, the Appellate Division stated that the prosecutor was not required to show that the reason for the peremptory challenge was directly related to the case itself. Id. at 312-13. A state court's finding as to pretext is a factual determination, see Hernandez, 500 U.S. at 365; see also United States v. Moore, 4 F. Supp. 2d 319, 322 (S.D.N.Y. 1998) (at step three, "the Court is permitted to become a fact-finder and rule on the ultimate question of violation of equal protection"), that is entitled to a presumption of correctness under 28 U.S.C. § 2254(e)(1). See Bryant v. Speckard, 131 F.3d 1076, 1077 (2d Cir. 1997), cert. denied, 524 U.S. 907 (1998). Thus, Brown has the burden of rebutting the presumption of correctness by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Brown suggests that the "pretextual" nature of the prosecutor's peremptory strike is evident from the fact that the prosecutor failed to challenge other jurors who also stated that they were currently unemployed. See Pet. App. Brief at 6-7, 21-22. After using a peremptory challenge to exclude a second unemployed juror, the prosecutor did not strike a stay-at-home mother of four or a retiree. Id. While inconsistent application of a race-neutral justification can be significant in determining whether that justification is pretextual, see, e.g., Jordan v. Lefevre, 293 F.3d 587, 594 (2d Cir. 2002); Haywood v. Portuando, 288 F. Supp. 2d 446, 460-61 (S.D.N.Y. 2003), such an argument is unavailing here inasmuch as the race-neutral reasons for the peremptory challenge — the juror's youth, student status, and lack of work experience — were not traits the accepted jurors shared. Courts have frequently found factors such as age, experience, and employment to be persuasive race-neutral reasons for peremptory challenges. See, e.g., Moxley v. Bennett, 291 F. Supp. 2d 212, 216 n. 11 (W.D.N.Y. 2003) (a "prospective juror's lack of significant employment experiences . . . is not [an] inappropriate [basis for striking]") (citation and internal quotation marks omitted); Jordan v. Lefevre, 22 F. Supp. 2d 259, 272-73 (S.D.N.Y. 1998) (citing cases where criteria such as age, life experience, and employment were accepted), rev'd in part on other grounds, 206 F.3d 196 (2d Cir. 2000); see also United States v. McCoy, 848 F.2d 743, 745 (6th Cir. 1988) ("Although three white jurors who were not challenged also did not work, the prosecution could reasonably assume that they, a 63-year-old male, a 62-year-old female, and a 41-year-old married female, would not excessively sympathize with [defendant]" unlike the young unemployed black woman who was struck.).
In short, Brown has not come forward with "clear and convincing evidence" to rebut the presumption that the state court properly found that the prosecutor's race-neutral reasons were not pretextual. Because the state court's factual finding as to the credibility of the prosecutor's reason for the strike did not constitute an "unreasonable determination of the facts in light of the evidence presented," 28 U.S.C. § 2254(d)(2), habeas relief is not available on this ground.
D. Sandoval Ruling
Brown argues that the trial court's Sandoval ruling deprived him of due process because it effectively precluded him from testifying in his own defense. Petition at 4; see also Pet. App. Brief at 27-31. Before the jury was chosen, the trial court held a conference to determine the use of Brown's prior convictions for impeachment pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974) (trial court may hold a preliminary hearing to determine what prior crimes or bad acts may be used to impeach a defendant's credibility should he testify in his own defense). (Tr. 7-20). The trial court ruled that should Brown choose to testify in his own defense, the People would be permitted to inquire as to the fact that he had been convicted of three felonies and four misdemeanors and the dates of those convictions, but would not be permitted to refer to the title of the crimes or the underlying facts involved. (Tr. 18-19). The court also held that the People would be allowed to inquire into various aliases and dates of birth Brown had used. (Tr. 19-20).
Brown's claim regarding this ruling cannot afford any habeas relief. The Supreme Court has held that an in limine ruling permitting impeachment by a prior conviction cannot be challenged on appeal unless the defendant actually testified at trial, because when a defendant does not testify, "the reviewing court . . . has no way of knowing whether the Government would have sought to impeach with the prior conviction." Luce v. United States, 469 U.S. 38, 41-42 (1984). Furthermore, "a reviewing court cannot assume that the adverse ruling motivated a defendant's decision not to testify." Id. at 42. Consistent with this holding, habeas courts have routinely held that a petitioner's failure to testify is "fatal to any claims of constitutional deprivation arising out of a Sandoval type ruling" because the court has "no adequate non-speculative basis upon which to assess the merits of that claim." Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y.), aff'd, 940 F.2d 649 (2d Cir. 1991); accord Sides v. Senkowski, 281 F. Supp. 2d 649, 656-57 (W.D.N.Y. 2003); Smalls v. Hodges, 2002 WL 1561158, at *4 (S.D.N.Y. July 15, 2002); Shannon v. Senkowski, 2000 WL 1683448, at *6-*7 (S.D.N.Y. Nov. 9, 2000) (citing cases). Because Brown did not testify at trial, his challenge to the Sandoval ruling cannot support habeas relief.
E. Weight of the Evidence
Brown argues that his convictions were against the weight of the credible evidence because no money was recovered. Petition at 4; see also Pet. App. Brief at 23-26. However, it is well-established that a claim regarding the "weight" of the evidence is not cognizable on federal habeas review because it is purely a state law claim that does not present a federal constitutional issue. See, e.g., Wilson v. Senkowski, 2003 WL 21031975, at *8 (S.D.N.Y. May 7, 2003) (Report and Recommendation) (citing cases), adopted by, Order, filed May 29, 2003 (Docket #20 in 02 Civ. 231); Correa v. Duncan, 172 F. Supp. 2d 378, 381 (E.D.N.Y. 2001); Kearse v. Artuz, 2000 WL 1253205, at *1 (S.D.N.Y. Sept. 5, 2000); see also Young v. Kemp, 760 F.2d 1097, 1105 (11th Cir. 1985) ("A federal habeas court has no power to grant habeas corpus relief because it finds that the state conviction is against the 'weight' of the evidence. . . ."), cert. denied, 476 U.S. 1123 (1986). Thus, habeas review is not available for this claim.
F. Sufficiency of the Evidence
Brown claims that the evidence adduced at trial was legally insufficient to prove his guilt beyond a reasonable doubt. Petition at 4 (back). In his motion to vacate his conviction and sentence, Brown pointed out that there was no physical evidence proving that he robbed Boadi, no weapon recovered, and no evidence other than Boadi's own testimony that Boadi was carrying $40 in his pocket when he encountered Brown. See Pet. 440.10 Mem. at 5-8.
In contrast to Brown's weight of the evidence argument, his insufficiency of the evidence argument is cognizable under the Due Process Clause of the Fourteenth Amendment, which prohibits a criminal conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime." In re Winship, 397 U.S. 358, 364 (1970). In light of Winship, the Supreme Court has held that when reviewing a state court conviction, a federal habeas court must consider whether there was "sufficient evidence to justify a rational trier of the facts to find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 313 (1979).
Nonetheless, it is settled that a habeas petitioner challenging the sufficiency of the evidence underlying his conviction bears a "very heavy burden." Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir.) (internal quotation marks and citation omitted), cert. denied, 515 U.S. 1136 (1995). To prevail, the petitioner must show that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt."Jackson, 443 U.S. at 324; accord Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002). In conducting this inquiry, all of the evidence and all reasonable inferences that may be drawn from the evidence are to be considered in the light most favorable to the prosecution. Jackson, 443 U.S. at 319; accord Maldonado v. Scully, 86 F.3d 32, 35 (2d Cir. 1996). Furthermore, "assessments of the weight of the evidence or the credibility of witnesses are for the jury" and thus a habeas court must "defer to the jury's assessments of both of these issues." Maldonado, 86 F.3d at 35; accord Rosa v. Herbert, 277 F. Supp. 2d 342, 347 (S.D.N.Y. 2003) ("[T]he court must defer to the jury's assessments of the weight of evidence and the credibility of witnesses") (citation omitted); Fagon v. Bara, 717 F. Supp. 976, 979-80 (E.D.N.Y. 1989) ("[T]his court is not free to make credibility judgments about the testimony presented at . . . trial or to weigh conflicting testimony.") (citing cases).
Under New York law, "[a] person is guilty of grand larceny in the fourth degree when he steals property and when [t]he property, regardless of its nature and value, is taken from the person of another." N.Y. Penal Law § 155.30(5). "A person is guilty of robbery in the third degree when he forcibly steals property." Id. § 160.05. In this case — as Brown has acknowledged, see Pet. 440.10 Mem. at 7 — Boadi testified that Brown reached into Boadi's cab and took approximately $40 out of his left breast pocket and threatened Boadi as he walked away. (Boadi: Tr. 247-53, 260-64, 271-73, 282-87).
Neither the possession of a weapon nor the recovery of the stolen property is a required element of either crime. See N.Y. Penal Law §§ 155.30(5), 160.05. Nor was it necessary that the prosecution introduce any corroborating evidence as "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir.) (citations omitted), cert. denied, 441 U.S. 951 (1979); see also Tibbs v. Florida, 457 U.S. 31, 45 n. 21 (1982) ("In this case, [the victim] provided eyewitness testimony to the crimes. If the jury believed her story, the State's presentation was more than sufficient to satisfy due process."); Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) ("[W]hile [the sole eyewitness's] testimony and character were less than inspiring," his testimony was nevertheless sufficient to support a conviction due in part to the fact that the jury had the opportunity to evaluate the credibility of the witness); Manning v. Walker, 2001 WL 25637, at *5-*6 (E.D.N.Y. Jan. 3, 2001) (habeas court will not reevaluate jury's choice to credit eyewitness's testimony notwithstanding alleged inconsistencies). Thus, the evidence was legally sufficient to support a finding of Brown's guilt beyond a reasonable doubt.
G. Prosecutorial Misconduct During Summation
Brown contends that certain comments made by the prosecutor during her summation had a substantial and injurious effect on the jury's verdict, depriving Brown of his right to a fair trial and to due process. Petition at 4 (back). In his motion to vacate, Brown argued that the prosecutor had vouched for Boadi's credibility and had referred to matters not in evidence by suggesting that Brown may have lost, dropped, or given away the money after he took it from Boadi. Pet. 440.10 Mem. at 9-13.
When a federal habeas court reviews comments made by the prosecutor during trial, "[t]he relevant question is whether the prosecutor's comments 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). "Prosecutorial misconduct during summation is grounds for reversal only when the remarks caused substantial prejudice to the defendant." Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) (internal quotation marks and citations omitted). In evaluating whether the prosecutor's remark deprived petitioner of a fair trial, the remark should be considered in context. Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852 (1991).
In this case, Brown's first complaint is that the prosecutor repeatedly referred to Boadi's credibility during her summation.See Pet. 440.10 Mem. at 9-12. For example, the prosecutor said, "he thought about every question and tried to answer it as fully and honestly as he could," "I submit to you that Mr. Boadi is nothing if not honest," and "why did he tell you about [things that you may not view in the best light]? Because it was true, because everything that he told you was true." (Tr. 397-99). The record demonstrates that these comments came in response to defense counsel's direct attack on Boadi's credibility during the defense summation. Defense counsel argued at length that Boadi had not told the truth. (Tr. 381-84, 390-91). He specifically told the jury to "ask yourselves this question: . . . Why would [Boadi] lie? . . . I submit to you that this time he was beat of his fare and it was the last straw. . . . He decided to go to the police and say this was a robbery." (Tr. 382-83). Defense counsel also stated that "sometimes good people do bad things like exaggerate and lie . . . and that's what happened in this case." (Tr. 384). In addition, he argued: "And if the prosecutor says, 'Why would Mr. Boadi come to court and lie under oath?' Well, you know, as I said before, when [Boadi] first made this false complaint against Shawn Brown, in his mind he never thought for a second that it was going to go any further. He figured Mr. Brown was probably going to plead guilty and that would be the end of the case." (Tr. 390-91).
While it is generally true that the government may not vouch for the credibility of its own witnesses, the Second Circuit has noted that a prosecutor may respond to a defense summation that "invited this response." Gonzalez, 934 F.2d at 424 (prosecutor argued that key prosecution witness "had no reason to lie" in response to defense counsel's argument that the witness had reasons to lie); accord Everett v. Fischer, 2002 WL 1447487, at *3 (E.D.N.Y. July 3, 2002) (prosecutor's comments as to the credibility of government witnesses a "fair response" to defense counsel's attack on the credibility of those witnesses); see also Shariff v. Artuz, 2001 WL 135763, at *8 (S.D.N.Y. Feb. 16, 2001) ("Although the government may not vouch for a witness's credibility, it may respond to an argument that impugns the government's integrity or the integrity of the case."); Ramos v. Keane, 1994 WL 97080, at *4 (S.D.N.Y. Mar. 23, 1994) ("[A] prosecutor may present what . . . amounts to a boisterous argument if it is specifically done in rebuttal to assertions made by defense counsel in order to remove any stigma cast upon the government or its witnesses.") (internal quotation marks and citation omitted). Here, the prosecutor was directly responding to Brown's attacks on Boadi's credibility. Accordingly, the comments were not improper.
Brown's second complaint is that the prosecutor referred to facts not in evidence when she said, "It doesn't matter what happened to the money afterwards — [Brown] threw it away, dropped it by mistake or gave it away — all the elements of the crime are proven." (Tr. 397). Pet 440.10 Mem. at 9-12; see Tr. 410-11. It is improper for a prosecutor to mischaracterize the evidence or refer to facts not in evidence, though such errors are not grounds for reversal unless they cause substantial prejudice to the defendant. United States v. Rosa, 17 F.3d 1531, 1548-49 (2d Cir.), cert. denied, 513 U.S. 879 (1994) (citations omitted); see also Tankleff v. Senkowski, 135 F.3d 235, 252-53 (2d Cir. 1998) (no ground for habeas relief stated where prosecutor's improper statements did not substantially prejudice defendant). Here, however, the challenged comments by the prosecutor were not improper. Defense counsel had focused in his summation on the fact that no money had been recovered. (See Tr. 385-86) ("[T]here is a fatal gap in their evidence. . . . That fatal gap is the money. . . . There is no logical explanation for where that money is."). The prosecutor's comments did not suggest that there was any evidence introduced at trial as to what happened to the money. Rather, the comments suggested the opposite: that there was no evidence on this point and that this lack of proof made no difference to the jury's finding of guilt on the elements of the crimes charged.
H. Ineffective Assistance of Appellate Counsel
Brown argues that his appellate counsel was ineffective. Petition at 4 (back). As explained above, in raising this claim in an application for a writ of error coram nobis in the Appellate Division, Brown attempted to base his claim on the fact that his appellate counsel failed to raise on appeal the four claims that Brown later raised pro se in his motion to vacate. See Coram Nobis App. at 1. However, the prosecution never understood Brown's intended link between the motion to vacate and the coram nobis application and instead argued that Brown had not identified any issue that appellate counsel failed to raise. See Coram Nobis Opp. ¶¶ 7-8. The Appellate Division issued a summary order denying the claim, although it cited to a case that rejected a coram nobis application on the merits. See Coram Nobis Decision (citing People v. De La Hoz, 131 A.D.2d 154, 158 (1st Dep't 1987)). It is not necessary to determine whether the Appellate Division denied Brown's application on procedural grounds, however, because Brown could not have — and cannot now — prevail on his ineffective assistance of appellate counsel claim.
The Second Circuit has described the law governing claims of ineffective assistance of appellate counsel as follows:
To prevail on a claim of ineffective assistance of counsel, a habeas petitioner must establish two elements: (1) that counsel's performance "fell below an objective standard of reasonableness," Strickland [v. Washington], 466 U.S. [668,] 688 [(1984)], and (2) that there is a "reasonable probability" that, but for the deficiency, the outcome of the proceeding would have been different, id. at 694. The same standard applies to a review of the effectiveness of appellate counsel. See, e.g., Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820 (1994).
As to the reasonableness of counsel's performance, it does not suffice "for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Mayo v. Henderson, 13 F.3d at 533. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Actions or omissions by counsel that "'might be considered sound trial strategy'" do not constitute ineffective assistance, Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)), and a court "may not use hindsight to second-guess" counsel's tactical choices, Mayo v. Henderson, 13 F.3d at 533; see Lockhart v. Fretwell, 506 U.S. 364, 372 (1993). A petitioner may rebut the suggestion that the challenged conduct reflected merely a strategic choice, however, by showing that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d at 533.McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); see also Smith v. Robbins, 528 U.S. 259, 285 (2000) (applyingStrickland to ineffective assistance of appellate counsel claims); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (noting that Strickland "applies . . . to claims of ineffective assistance of appellate counsel on a defendant's first appeal as of right") (citing Evitts v. Lucey, 469 U.S. 387, 396-97 (1985)). The Seventh Circuit has noted that
appellate counsel need not raise all possible claims of error. Jones v. Barnes, 463 U.S. 745 (1983). One of the principal functions of appellate counsel is winnowing the potential claims so that the court may focus on those with the best prospects. Defendants need dedicated, skillful appellate counsel, not routineers who present every non-frivolous claim.Page v. United States, 884 F.2d 300, 302 (7th Cir. 1989);accord Smith, 528 U.S. at 288 ("[A]ppellate counsel . . . need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal.") (citing Jones, 463 U.S. at 750-54); Stokes v. United States, 2001 WL 29997, at *4 (S.D.N.Y. Jan. 9, 2001) ("The mere fact that [appellate counsel] was unsuccessful on appeal and did not raise every claim urged by the petitioner does not constitute ineffective assistance of counsel.").
In Brown's case, each of the four issues he raised in his motion to vacate (which he faults counsel for failing to raise on direct appeal) is meritless. Obviously, counsel cannot be found ineffective for failing to raise meritless issues. See, e.g., Aparicio, 269 F.3d at 99 ("The failure to include a meritless argument [on appeal] does not fall outside the 'wide range of professionally competent assistance' to which Petitioner was entitled.") (quoting Strickland, 466 U.S. at 690). While the previous discussion of these issues, see sections III.A-B, F-G above, focused on their lack of merit under federal law, the claims fare no better under state law.
With respect to Brown's claim regarding the sufficiency of the evidence before the grand jury, under New York law such claims are not reviewable after a guilty verdict based upon legally sufficient trial evidence has been rendered. See C.P.L. § 210.30(6); People v. Huston, 88 N.Y.2d 400, 411 (1996). With regard to Brown's claim that the indictment was insufficient because it charged only the taking of "property," the statutes under which Brown was charged specifically speak of stealing "property." See N.Y. Penal Law §§ 155.30(5), 160.05; see also People v. Spann, 56 N.Y.2d 469, 473 (1982) ("The particular nature of the property stolen is not, by statute, a material element of the crime of robbery."). The insufficiency of the trial evidence argument is also meritless under New York law (to the extent New York provides any greater protection than the federal constitution) as the testimony of even one witness establishing all of the elements of the crime is sufficient to support a conviction. See People v. Arroyo, 54 N.Y.2d 567, 578, cert. denied, 456 U.S. 979 (1982). In any event, appellate counsel raised a far more effective argument that was available only under New York law: that the verdict was against the weight of the evidence. See Pet. App. Brief at 23-26. Finally, the prosecutor's comments in summation did not violate New York law — again, to the extent that New York law may be any different from federal constitutional requirements on this point — as she did not refer to any matter not in evidence or call upon the jury to draw any conclusion which could not be fairly inferred from the evidence. See People v. Ashwal, 39 N.Y.2d 105, 109-10 (1976).
Because Brown has not established that his appellate counsel's performance "fell below an objective standard of reasonableness," he is not entitled to habeas relief.
I. Challenge to Sentence
Finally, Brown challenges his enhanced sentence under New York's discretionary persistent felony offender statute. See Petition at 4 (front); Memorandum of Law in Reply to Respondent's Affirmation, dated December 8, 2003 ("Pet. Reply Mem."), at 2-12. Although Brown's petition did not explicitly raise the Apprendi issue with regard to his sentence, see Petition at 4 (front), the respondent's opposition addressed the Apprendi claim inasmuch as it was raised on direct appeal, see Opp. Mem. at 23-29; Pet. Supp. App. Brief at 2-15. Brown thereafter briefed the issue. Pet. Reply. Mem. at 2-12. Given the liberal construction to be afforded pro se filings and the applicability of the liberal amendment policy reflected in Fed.R.Civ.P. 15(a), see, e.g., Littlejohn v. Artuz, 271 F.3d 360, 363-64 (2d Cir. 2001), as well as the fact that the respondent has addressed this claim, the Court will construe Brown's petition as raising theApprendi issue — along with his original claim regarding the fairness of his sentence.
1. Apprendi Issue.
Without enhancement, Brown's conviction for Robbery in the Third Degree carried a maximum sentence of seven years in prison and his conviction for Grand Larceny in the Fourth Degree carried a maximum sentence of four years in prison. See N.Y. Penal Law § 70.00(2)(d)-(e); Pet. Supp. App. Brief at 2. Under the persistent felony offender statute, N.Y. Penal Law § 70.10, Brown's sentence was enhanced to 15 years to life in prison. (See Sentencing: Tr. 46-48). Relying on Apprendi, Brown argues that his enhanced sentence violated his Sixth Amendment rights because it was based in part on facts not submitted to the jury and not proved beyond a reasonable doubt. See Pet. Reply Mem. at 5-12. This claim was presented on direct appeal and the Appellate Division dismissed the claim on the merits. Brown, 283 A.D.2d at 313 (citing People v. Rosen, 96 N.Y.2d 329 (2001)).
The Second Circuit has recently ruled on precisely this claim, holding that a state court ruling upholding a sentence under New York's discretionary persistent felony offender statute — N.Y. Penal Law § 70.10 — is neither contrary to nor an unreasonable application of Apprendi. See Brown v. Greiner, ___ F.3d ___, 2005 WL 1314429, at *8-*9 (2d Cir. June 3, 2005); see also People v. Rawlins, 2004 WL 362349, at *3 (N.Y.Sup.Ct. Feb. 25, 2004) (finding the discretionary persistent felony offender statute constitutional). Accordingly, Brown's claim here must also fail.
2. Fairness of Sentence
In his appellate brief, Brown argued that he should be re-sentenced because he was convicted of robbing only $40 and because inadequate consideration was given to his social history as required by the persistent violent felony statute. Pet. App. Brief at 32-36.
Because a habeas court must grant considerable deference to legislatively mandated terms of imprisonment, successful challenges to sentences are "exceedingly rare." Hutto v. Davis, 454 U.S. 370, 374 (1982) (per curiam) (citation omitted); see also Solem v. Helm, 463 U.S. 277, 290 (1983) ("Reviewing courts, of course, should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes, as well as to the discretion that trial courts possess in sentencing convicted criminals."). Indeed, the Second Circuit has broadly stated that "[n]o federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law."White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (per curiam) (citation omitted); accord Herrera v. Artuz, 171 F. Supp. 2d 146, 151 (S.D.N.Y. 2001); Sutton v. Herbert, 39 F. Supp. 2d 335, 337 n. 1 (S.D.N.Y. 1999) (citing cases). Here, Brown does not contest that the sentence was within the range prescribed by state law.
The Eighth Amendment does prohibit sentences that are "disproportionate to the crime committed" regardless of whether they are within the limits permitted by state law. Solem, 463 U.S. at 284. While the Supreme Court has outlined factors that may be considered in deciding whether a penalty is grossly disproportionate to the offense, this is not one of the "rare" cases where the "reviewing court . . . [is] required to engage in extended analysis to determine that a sentence is not constitutionally disproportionate." Id. at 290 n. 16. It is sufficient to state that a sentence of 15 years to life for a robbery involving a threat of force and committed by a career criminal is not constitutionally disproportionate.
Conclusion
For the foregoing reasons, Brown's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Denise L. Cote, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Cote. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).