Opinion
02-CV-0641, 03 MISC-0066 Related to 98-CV-0435.
April 21, 2004
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
A. History in this Court
On January 20, 1998 petitioner (sometimes referred to as defendant) filed a petition seeking a writ of habeas corpus. 28 U.S.C. § 2254. See 98 CV 00435 (E.D.N.Y.). An application for counsel was denied on December 9, 1998. The petition was dismissed to permit exhaustion of state remedies, without prejudice and with leave to renew upon exhaustion of state remedies, on January 5, 2001.
On January 25, 2002 a new petition was filed. See 02 CV 0641 (E.D.N.Y.). On July 17, 2003 an application by petitioner to stay the new petition was filed. This petition was stayed administratively on August 5, 2003 to permit further exhaustion of state remedies. Pursuant to petitioner's request the stay was lifted on February 3, 2004. The court received respondent's papers in opposition. Petitioner on March 31, 2004 was granted 20 days to respond. To date he has not responded.
The original petition (98 CV 0435) made the following claims:
Ground One: The people never produced the Kel set at trial upon request of the defendant.
Supporting Facts: Sergeant Bifocal was on the receiving part of the unit. The field supervisor Sergeant Bifocal heard the conversation between defendant and the Undercover Officer Wilson 6215. Sgt. Bifocal and Officer Wilson both wore Kel sets.
There is at least a "reasonable probability" that had the "Kel sets" been disclosed to the defense, the result of the proceeding would have been different.
Ground Two: Defendant was denied the opportunity to testify before the Grand Jury.
Supporting Facts: Defendant informed lawyer John J. O'Grady numerous times that defendant would like to appear before the Grand Jury so the jury will be able to hear both sides of the story.
Ground Three: [Perjury]
Supporting Facts: The Undercover Officer Wilson 6215 denied the fact and actually lied that he was a officer when asked by defendant.
An application for a writ of error coram nobis was denied by the Appellate Division and leave to appeal to the Court of Appeals was denied on December 31, 2003. See letter of petitioner filed January 24, 2004. On January 29, 2004 petitioner was granted leave to amend his petition.
As amended, petitioner's claims include those set out above, plus the claim that he was denied effective appellate counsel in state court. See petitioner's admission dated March 26, 2004. In addition to the Grand Jury issue, the petitioner's main contention is:
There is at least a "reasonable probability," that had the evidence, "Kel set Transmitter been disclosed to the defense, the result of the proceeding would have been different.
March 26, 2004 submission, p. 3.
B. History in state court
On March 6, 1994, at Sutphin Boulevard and 119th Avenue in Queens County, defendant sold a "dime bag" of heroin to an undercover police officer. At the time of defendant's arrest, another officer recovered an additional vial of cocaine and ten dollars of prerecorded buy money from defendant's jacket pocket. He also recovered three envelopes of heroin from the ground at defendant's feet.
Following his arrest, defendant was charged with Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]), Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]), and Criminal Possession of a Controlled Substance in the Seventh Degree (Penal Law § 220.03), (Queens County Indictment Number 10959/94).
Defendant was tried by a jury. He was convicted of Criminal Sale of a Controlled Substance in the Third Degree (Penal Law § 220.39[1]), and Criminal Possession of a Controlled Substance in the Third Degree (Penal Law § 220.16[1]). On August 14, 1995, defendant was sentenced, as a second felony offender, to two concurrent terms of imprisonment of from ten to twenty years on each count (Browne, J.).
In October, 1996, defendant, represented by Alyson J. Gill of Appellate Associates, assigned appellate counsel, appealed. On appeal, defendant claimed: defendant was deprived a fair trial by the trial court's failure to instruct the jury that the testimony of a police officer was entitled to no greater weight than that of any other witness; that the trial court erred by failing to clarify for the jury whether the possession count related to the drugs defendant sold or the drugs recovered from him at the time of his arrest; and that defendant's sentence was excessive.
On June 9, 1997, the Appellate Division affirmed defendant's judgment of conviction, holding that defendant's contention that the trial court erred by failing to charge the jury that the testimony of a police officer was entitled to no more credibility than any other witness was unpreserved for appellate review and that reversal in the interest of justice was not warranted. The Court also held that the sentence was not excessive. Finally, the Court held that defendant's remaining contentions were either unpreserved or without merit. People v. Burnett, 240 A.D.2d 509 (2d Dept. 1997).
On March 26, 1997, defendant sought leave to appeal to the Court of Appeals. On August 21, 1997, leave to appeal was denied.See People v. Burnett, 90 N.Y.2d 902 (1997).
Defendant pro se then moved for coram nobis relief, arguing that appellate counsel was ineffective because she failed to raise a Brady issue relating to a "Kel" transmitter recording of his sale of drugs to the undercover officer that was not turned over to the defense. As already noted coram nobis relief was denied.
II. 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).
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. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[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); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). 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).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
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 banc).
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."). In 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).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "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, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
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).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." 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 Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); 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.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XII. Analysis of Claims
A.
Petitioner's claim of ineffective assistance of appellate counsel is without merit. Appellate counsel provided competent representation in choosing the issues that she did. The issue petitioner claims should have been raised was meritless. Since petitioner's suggested claim lacks merit under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984), the Appellate Division's denial of petitioner's corum nobis application was neither "contrary to," nor an "unreasonable application of" federal law. Petitioner is not entitled to habeas relief on this ground. 28 U.S.C. § 2254(d)(1).
A criminal defendant has the right to the effective assistance of counsel on the direct appeal of his conviction. Evitts v. Lucey, 469 U.S. 387, 395-96 (1985). In determining whether appellate counsel has rendered constitutionally effective assistance, courts will apply the standard enunciated inStrickland v. Washington, 466 U.S. 668, 687-96 (1984). See e.g, Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820 (1994). Under the Strickland analysis, a person claiming ineffective assistance of counsel must demonstrate that counsel erred and that the errors were not within the realm of reasonable professional conduct. In addition, it must be shown that the defendant suffered prejudice as a result of counsel's failures, which translates into a showing that there is a reasonable probability that, but for the error, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. at 687-88, 694.
Counsel is not required to raise every nonfrivolous issue on appeal, even when the defendant requests it be raised. James v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994). Appellate counsel "is entitled to focus on key issues while winnowing out weaker arguments. Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Jones v. Barnes, 463 U.S. 745, 751-53 (1983). The "weeding out of weaker issues is widely recognized as one of the hallmarks of effective appellate advocacy." Miller v. Keeney, 882 F.2d 1428, 1434 (9th Cir. 1989).
The issues petitioner's counsel chose to raise on direct appeal were not frivolous. Counsel filed a 30-page brief in which she chose relevant and promising issues for appeal, and presented those issues in a well-reasoned argument containing appropriate case law.
The point petitioner claims counsel should have raised was meritless. The underlying claim that his sale of drugs was recorded from a Kel transmitter, and that this recording, which was not turned over to defense, contained exculpatory information that established that he was somehow framed because the undercover officer denied being a police officer when he was making the purchase is baseless. Petitioner's claim is predicated upon his unsupported allegations.
As noted by Justice Robert C. Kohm in denying petitioner's Criminal Procedure Law § 440.10 motion raising the same underlying claim, there was uncontested testimony that the Kel transmitter was not a recording device but only a transmitting device and that no tape of the transmission was made. Defense counsel questioned Detective Wilson, the undercover officer who purchased the drugs from petitioner, directly as to whether or not a recording was made of his conversation with petitioner before purchasing drugs:
Q: So, your testimony is that this transmission that you had with your backup units indicated positive buy was not transmitted over any such broadcast channel that could be recorded, correct?
A: That's correct.
(T. 238). Defense counsel also asked Detective Brady, who actually arrested petitioner, if the team had used the point-to-point radio over the police band, which would have then been recorded (T. 298). Detective Brady testified that they had not (T. 299). There was no tape to turn over as Brady material.
Petitioner's contention that the Kel set transmitter should have been produced at the trial is meritless since the Kel transmitter did not have taping capabilities and would have served no purpose. It would have been futile for Appellate counsel to argue a Brady claim. Appellate counsel cannot be deemed ineffective for failing to raise a meritless claim.
Assuming arguendo that the conversations were taped and counsel should have raised the issue on appeal, petitioner is unable to satisfy the prejudice prong under Strickland. The evidence adduced at trial, including petitioner's own admission in court that he sold the undercover a bag of heroin (T. 337) and his admission of possessing crack cocaine (T. 338), was overwhelming. In addition, whether petitioner asked the undercover if he was a police officer is of no moment. Petitioner admitted to being there, and admitted to selling the heroin. There is no "reasonable probability" that the decision of the Appellate Division or the New York Court of Appeals would have been different had appellate counsel presented this issue.
B.
Petitioner complains that he was denied the right to testify on his own behalf before the Grand Jury. Petitioner claims that he was never given notice of the Grand Jury proceeding and that he wanted to appear "so the jury will be able to hear both sides of the story." The claim of impropriety in the grand jury proceeding does not raise a federal constitutional question. It is not reviewable in this Court.
Where a habeas petitioner has been convicted following a state court criminal trial, his failure to testify in the grand jury `could not have made any constitutional difference' in his case because of the lesser standard of proof applicable to grand jury decisions to indict. Saldana v. State of New York, 850 F.2d 117, 199 (2d Cir. 1988), cert. denied, 488 U.S. 1029 (1989); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989) (challenges to state grand jury proceedings usually rendered harmless by petit jury's verdict of guilt).
To the extent that petitioner reiterates his post-judgment C.P.L. § 440.10 claim that his trial counsel was ineffective for failing to effectuate his right to testify before the grand jury, his claim fails. Even assuming, arguendo, that trial counsel failed to apprise petitioner that he could testify before the grand jury, trial counsel's failure to effectuate a defendant's right to testify before the grand jury, would not, per se constitute ineffective assistance of counsel. People v. Wiggins, 89 N.Y.2d 872, 653 N.Y.S.2d 91 (1996) (noting that where appellate review of sufficiency of grand jury evidence is barred by a conviction on legally sufficient trial evidence, it would be anomalous to "elevate" a "representational lapse" of trial counsel at the grand jury stage to constitute a per se denial of counsel and thus "an automatic delayed reversal device").
In view of the circumstances — a well established "buy and bust" — no counsel would recommend that a defendant in petitioner's position appear before the Grand Jury. His testimony would almost certainly have hurt him at the trial.
C.
Petitioner complains that the undercover officer lied to him when petitioner asked him directly whether he was a police officer. According to petitioner, the People then committedBrady violations by failing to call the sergeant who monitored the conversation between petitioner and the undercover officer to substantiate his claim, and by failing to produce either the Kel set transmitter itself or a tape recording that it created.
Brady v. Maryland, 373 U.S. 83 (1963) places a duty on the prosecution to disclose to an accused exculpatory information in its possession that is favorable to the defense and material to quilt or punishment. Id. at 87. Evidence is material if there is a reasonable probability that, had the evidence been disclosed, the outcome of the proceeding would have been different. See United States v. Bagley, 473 U.S. 667, 682 (1985). A reasonable probability is a "probability sufficient to undermine confidence in the outcome." Bagley, 473 U.S. at 682;see also United States v. Vozzella, 124 F.3d 389, 392 (2d Cir. 1997). In United States v. Giglio, 405 U.S. 150 (1972), the Supreme Court found that a Brady-type violation existed when the government failed to disclose information that could have substantially influenced the jury's assessment of a prosecution witness' credibility.
Here, there was uncontested testimony that the Kel transmitter was not a recording device but only a transmitting device. Defense counsel questioned Detective Wilson, the undercover officer who purchased the drugs from petitioner, directly as to whether or not a recording was made of his conversation with petitioner before purchasing drugs.See part A, supra; T.238. Defense counsel also asked Detective Brady, who actually arrested petitioner, it the team had used the point-to-point radio over the police band, which would have then been recorded. Detective Brady testified that they had not (T. 299).
There was no tape to turn over as Brady material. Turning over the Kel set transmitter would have served no useful purpose since it did not have taping capabilities and thus could not have provided the jury with the corroboration petitioner was seeking. Petitioner offers no proof of his allegations that a tape was destroyed or even that a tape ever existed. He merely states as fact, with no substantiation, that he knows the tape or transmitter were exculpatory and would have served to exonerate him.
In view of the overwhelming evidence adduced at trial, including petitioner's own admission in court that he sold the undercover a bag of heroin (TT: 337), and his admission that he possessed crack cocaine (TT: 338), there is almost zero "probability" that had the jury heard evidence that the undercover officer had denied being a police officer prior to the sale, that the outcome would have been different. Whether petitioner asked the undercover if he was a police officer is of no moment. Of course an officer in a buy and bust will claim he was not a policeman; any other ploy would scotch the sale. Petitioner's admission alone made conviction almost certain.
D.
No other possible claim is more than frivolous. The defense tried, but could not make a silk purse out of this sow's ear.See Summation, Tr. 367-382.
E.
There is no point in considering the issues of timeliness or procedural bar in view of the lack of substantive merit to petitioner's claims.XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.