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holding that a claim which is "procedurally barred pursuant to [CPL §] 440.10(b) [is one based] . . . on New York procedural law rather than federal law"
Summary of this case from Johnson v. RicksOpinion
02-CV-3655 (JBW), 03-MISC-0066 (JBW)
October 17, 2003
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
This petition was filed on June 18, 2002, Petitioner (sometimes referred to as defendant) makes the following claims;
Ground one: It was the prosecutors unconstitutional failure to disclose evidence favorable to petitioner.
Ground two; Petitioner's constitutional rights to due process and equal protection against an unlawful arrest was violated.
Ground three: Petitioner's constitutional rights against self-incrimination was violated.
Ground four: Petitioner was denied effective assistance of counsel.
The evidence supports the following statement:
Between October 23, 1995 and November 29, 1995, petitioner committed a series of robberics in Queens County. All of petitioner's victims were women. On December 1, 1995, Police Officer Christopher Strom of the 101 "Precinct Anti-Crime Unit saw petitioner driving a vehicle whose make, model and license plate number matched the description of the vehicle used by petitioner to flee the scene of one of the robberies. The description of the vehicle and the license plate number had been provided by one of the victims. Officer Strom also saw that petitioner, a male black with dreadlock-style hair, fit the description of the robbery suspect,
Petitioner was arrested and charged with five counts of Robbery in the First Degree (N.Y. Penal Law § 160.15[4], Robbery in the Second Degree (N.Y. Penal Law § 160.10[3]), three counts of Robbery in the Second Degree (N.Y. Penal Law § 160.10[1]), Grand Larceny in the Third Degree (N.Y. Penal Law § 155.35) and Robbery in the Third Degree (N.Y. Penal Law § 160,05) (Queens County Indictment Number 5401/95. In a separate indictment, petitioner was charged with two counts of Robbery in the First Degree (N.Y. Penal Law § 160.15 [4], two counts of Robbery in the Second Degree (N.Y. Penal Law § 160.10[1], [2]), and Attempted Robbery in the Third Degree (N.Y, Penal Law §§ 110/160,05) (Queens County Indictment Number 5402/95).
Following his indictments, petitioner moved in Supreme Court, Queens County, to suppress his statements, the identifications of him, and the physical evidence that the police recovered after petitioner's arrest, On April 9, 1996, a joint Huntley//Wade/Mapp hearing was held. On May 20, 1996, the court denied petitioner's motion to suppress in its entirety.
On August 15, 1996, petitioner pled guilty to each count contained in the indictments. On September 25, 1996, petitioner was sentenced to an aggregate maximum term of fifteen years incarceration.
On January 9, 1997 the Appellate Division, Second Department, granted pelitioner's pro se motion for leave to appeal as a poor person and assigned counsel.
On May 27, 1997, the Appellate Division Second Department, granted petitioner's motion to amend its January 9, 1997 decision to reflect that petitioner's appeal would encompass his judgments of conviction under both Queens County Indictment Number 5401/95 and 5402/95.
In November, 1998, petitioner perfected his appeal to the Appellate Division, Second Department. In this appellate brief, petitioner, through assigned counsel, argued that the hearing court head improperly denied his motion to suppress the statements he made to the police and the line-up identifications of petitioner as the fruits of a warrantless arrest because the testimony of the police witnesses at the hearing was patently incredible.
On or about November 6, 1998, petitioner pro se, filed a motion to strike assigned counsel's brief and to have new appellate counsel assigned. On or about November 22, 1998, petitioner filed a motion requesting permission to file a pro se supplemental brief, In support of his motion, petitioner argued that assigned counsel would not raise all of the claims upon which petitioner sought redress on his appeal.
In a written decision and order dated January 14, 1999, the Appellate Division, Second Department, denied petitioner's motion to strike appellant's brief and have new counsel assigned. The court granted petitioner permission to file a pro se supplemental brief,
On March 21, 1999, petitioner filed a pro se supplemental brief in which he claimed that the State failed to provide him with a piece of paper containing petitioner's license plate number that a detective had transcribed during his investigation, which allegedly violated People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 445, cert. denied, 368 U.S. 886 (1961), and that because there was no probable cause for his arrest, petitioner's statements and the identifications of him should have been suppressed as the fruit of an illegal arrest.
On or about March 15, 1999, petitioner moved in the Supreme Court, Queens County, to vacate his judgment of conviction pursuant to section 440.10 of the Criminal Procedure Law. Petitioner claimed that 1) he was denied the opportunity to testify before the Grand Jury; 2) the state failed to provide him with Rosario material specifically, a note containing petitioner's license plate number that Detective Carrano transcribed during his investigation; and 3) he was denied the effective assistance of trial counsel.
On May 13, 1999, the Supreme Court, Queens County, denied petitioner's section 440.10 motion, holding that petitioner's claims were on-the-record claims that were subject to a mandatory procedural bar.
On or about June 6, 1999, petitioner sought leave to appeal to the Appellate Division, Second Department, from the denial of his section 440.10 motion to vacate his judgment of conviction.
On July 15, 1999, the Appellate Division, Second Department, granted petitioner's leave application.
On September 10, 1999, the Appellate Division, Second Department, on its own motion, consolidated petitioner's direct appeal with his section 440.10 post-judgment appeal.
On or about January 24, 2000, petitioner's counsel filed a brief requesting permission to withdraw because the claims raised in petitioner's motion to vacate his judgment of conviction were all on-the-record claims that were subject to a mandatory procedural bar, and, therefore, there were no non-frivolous issues that counsel could raise on petitioner's behalf.
On October 23, 2000, the Appellate Division, Second Department, affirmed petitioner's judgments of conviction and the lower court order denying petitioner's section 440.10 motion. In its decision, the Appellate Division held that the hearing court had properly concluded that the initial stop and petitioner's subsequent arrest were lawful because the hearing evidence established that the police had observed petitioner, whose physical appearance matched the description of the robber that one of the victims provided, driving a red Chevrolet Blazer with a license plate number that the same victim had noted. People v. Curry, 276 A.D.2d 709, 710, 714 N.Y.S.2d 349, 350 (2d Dept. 2000), In addition, the court held that petitioner's remaining contentions were without merit. Id.
On November 13, 2000, petitioner, through assigned counsel, sought leave to appeal to the New York State Court of Appeals. That leave application was denied on March 16, 2001.
I. 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 man 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 ease 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 habcas 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 sue 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 'property 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. 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 CIF.3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998), But "[it] has long been recognized that ignorance docs 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, 168 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 JO (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, S10 (2d Cir. 2000), Where "a state court's ruling docs 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. Delos, 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 . . . mat 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 011 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 "rcache[s] the constitutional threshold," Instant 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 *1S (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 man 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, 53S (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 no frivolous 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.'" Donavan v. Keane, 137 F.3d 117, 125 (2d Cir. 199S) (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. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. DWCCIHS, Nos. 99-CV-2561, 03-MISC-OG66 (JBW), 2003 U.S. Dist. LEXTS 11050, at *4-*7 (E.D.N.Y, June 11, 2003) (Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (KD.N.Y. June 20, 2003) (Wade claims); Brathwaite v. Duncax, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) (Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinet v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) (Rosario claims); Bezique v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June (15, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jetliner v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz., 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist LEXIS 11049, at *7-*8 (E.D.N.Y, June 13, 2003) (abuse of discretion in sentencing).
XII. 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).
XIII. Analysis of Claims
A.
Petitioner claims that the State failed to supply Rasario material.
Detective Carrano's testimony at the suppression hearing established that he had written on the complaint report a portion of the license plate number that Cecilia Hangler had told him was the license plate number of the vehicle that petitioner had used to flee after he had robbed her, and that the complaint report was turned over to petitioner before the suppression hearing as required pursuant to People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied., 368 U.S. 866 (1961). Petitioner, nonetheless, contends as he did in state court that the State failed to provide him with a writing that contained the license plate number. Petitioner's claim that the State prosecutor failed to disclose Rosario material does not present an issue of federal dimension and, accordingly, must be denied.
To the extent that petitioner's claim may be construed as regarding a Brady violation pursuant to Brady v. Maryland, 373 U.S. 83 (1963), petitioner failed to exhaust the claim because he only challenged the alleged evidentiary violation as a Rosario violation and failed to specifically raise the claim as a Brady violation in state court. In any event, as discussed infra, because the evidence about which petitioner complains was, in fact, turned over to the defense, no such violation occurred.
Under People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 886 (1961), a state prosecutor must disclose any statement of a witness whom the prosecution intends to call at the hearing or trial, which is in the prosecutor's possession or control and relates to the subject matter of the witness' testimony, While this rule, which is codified in section 240, 44(1) and 240, 45(1)(a) of the New York Criminal Procedure Law, is similar to the federal Jencks rule, see Jencks v. United States, 353 U.S. 657 (1957), a claim that a state prosecutor withheld material from the defense in violation of the dictates of Rosario is based upon state law and does not present a federal constitutional question upon which federal habeas corpus relief can be granted.
All Rosario material appear to have been properly turned over to defense counsel before the suppression hearing commenced. Petitioner first became aware at the suppression hearing that Detective Joseph Carrano, the detective assigned to investigate the robberies, had written down a portion of the license plate number of petitioner's vehicle during the detective's investigation. Detective Carrano testified that during a telephone conversation with Cccilia Hangler, one of petitioner's victims, she told him the license plate number of the vehicle that petitioner used to flee the scene of the robbery. The detective wrote down a portion of this number (Carrano: 70), Initially, the detective indicated that he did not recall where he had written the number, or if he still had the paper upon which it was written. At petitioner's request, however, the court ordered the state prosecutor to locate the paper, and told the prosecutor that there would be "a problem" if the issue was not resolved (Carrano; 71).
Thereafter, further examination of Detective Carrano revealed that the paper at issue was actually the original complaint report that the detective had completed during his conversation with Ms. Hangler (Carrano: 101), The detective testified that he wrote the first three characters — G71 — on the complaint report, and then went to "run [the license plate number] through the computer" while he spoke with Ms. Hangler (Carrano: 100-103). Detective Carrano explained that he typed the complete license plate number into the computer, and that the computer generated a printout with information about the vehicle registered to the license plate number (Carrano: 100-103), The detective further testified that he did not write the license plate number, or any portion of it, on any other paper other than the complaint report (Carrano: 103).
Detective Carrano showed the court and petitioner the place on the complaint report where he wrote the first three characters of the license plate number. The detective also showed the court and petitioner the computer generated printout from the FINEST machine (Carrano: 101-103). Contrary to petitioner's claim, copies of each of these documents apparently had been turned over to petitioner before the hearing commenced, and petitioner had acknowledged receipt of them (Proceedings: 5-(5).
The issue concerning the missing Rosario material was conclusively resolved. Petitioner has failed to show that there was any Rosario or Brady material that had not been turned over.
This claim has no merit.
B.
Petitioner claims that the line-up identification and statements he made should have been suppressed as the fruit of an illegal arrest.
The state court reasonably rejected petitioner's claim that the line-up identifications of him and the statements he made to the police should have been suppressed. It held that the bearing court had properly concluded that the initial stop of petitioner and his subsequent arrest were lawful because the hearing evidence established that the police had observed petitioner, whose physical appearance matched the description of the robber that one of the victims provided, driving a red Chevrolet Blazer with license plate number that the same victim had noted. Petitioner maintains, nevertheless, that he is entitled to habeas corpus relief because the State failed to establish probable cause for his arrest. Because petitioner seeks suppression of the line-up identifications and petitioner's statements on Fourth Amendment grounds, his claim is barred from review. See Stone v. Powell, 428 U.S. 465 (1976),
Petitioner had a full and fair opportunity to raise his Fourth Amendment claim in state court. Article 710 of the New York Criminal Procedure Law provides the motion and hearing procedure to be used in determining the admissibility of Fourth Amendment claims, as well as other claims. A petitioner also may raise issues relating to those claims on an appeal from a judgment of conviction. The state provides a sufficiently full mechanism for resolution of Fourth Amendment issues.
Petitioner can establish no "unconscionable breakdown" in the procedure that deprived him of the opportunity to raise the claim. Petitioner took full advantage of his opportunity to litigate his Fourth Amendment challenge to his arrest and the evidence that the State subsequently obtained as a result. Petitioner received a pre-trial hearing in which he challenged the legality of his arrest and moved to suppress the line-up identifications and statements he made to the police as the fruits of his illegal arrest, He raised a similar challenge on his direct appeal. See People v. Curry, 276 A.D.2d 709, 714 N.Y.S.2d 349, 350 (2d Dept. 2000). Because petitioner fully litigated his Fourth Amendment claim in state court, this Court is now barred from reviewing petitioner's Fourth Amendment claim pursuant to Stone v. Powell.
This claim has no merit.
C.
Petitioner claims his trial counsel was ineffective.
When petitioner brought a claim through a post-judgment motion in state court mat he was denied the effective assistance of trial counsel, the state courts rejected it, not on the merits, but on the ground that the claim concerned matters that were on the record and should have been brought on petitioner's direct appeal. Because the state courts rejected petitioner's claim on the basis of a state procedural bar, rather than on the merits, petitioner may not obtain federal habeas corpus review of his claim unless he shows both cause and resulting prejudice for his procedural default, or that there would be a fundamental miscarriage of justice should the Court not review his claim. Since petitioner has not made these showings, he is not entitled to review of his claim.
Federal courts will not consider an issue of federal law on habeas corpus review of a state court decision if that decision rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision, Harris v. Reed, 489 U.S. 255 (1989), A state court's reliance on a state procedural ground as a basis for rejecting a claimed violation of a state prisoner's constitutional rights constitutes such an "adequate and independent state ground" that generally precludes federal habeas review. Harris v. Reed, 489 U.S. at 261-62; see Levine v. Commissioner of Correctional Services, 44 F.3d 121, 126 (2d Cir. 1995). The rationale underlying this rule is that a federal court — in the interests of finality, federalism and comity — should not undertake collateral review of a state court conviction that is supported by an adequate and Independent state ground. See Coleman v. Thompson., 501 U.S. 722, 729-30 (1991), This procedural bar is applicable only in cases when the last reasoned state Court decision contains a "plain statement" that the state court is relying, at least in part, on the applicable state procedural rule in deciding the claim. Harris v. Reed, 489 U.S.255, 263-65. But see Ylst v. Nunnemaker , 501 U.S. 797, 801-06 (1991); Coleman v. Thompson, 501 U.S. at 335-40,
Here the state court rejected petitioner's claim that he was denied the effective assistance of counsel based solely upon the fact that petitioner's post-judgment claim was not brought in the proper forum. Section 440.10 of the New York Criminal Procedure Law requires a court to deny a motion brought under that section when "the judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal." The State opposed petitioner's ineffective assistance of counsel claim solely upon the ground that it was mandatorily barred pursuant to section 440,10(2) (b) of the New York Criminal Procedure Law because it was an on-the-record claim that could have been raised on petitioner's direct appeal. The state court decision specifically states that the court found that petitioner's ineffective assistance of counsel claim was mandatorily procedurally barred pursuant to section 440.10(2)(b) of the New York Criminal Procedure Law. Thus, the state court clearly rested its decision on New York procedural law rather than federal law. See People v. Curry, 276 A.D.2d at 710, 714 N.Y.S.2d at 350.
Nor do the Appellate Division's decision that there were no non-frivolous issues that could have been raised on petitioner's appeal, under Anders v. California, 386 U.S. 738 (1967), from the denial of his post-judgment motion or the New York Court of Appeals' subsequent decision summarily rejecting petitioner's application to appeal the Appellate Division's decision, mean that those courts considered the merits of petitioner's claim. When faced with a silent rejection of a claim in the state court, the habeas court must `look through" that decision to the "last reasoned opinion" issued in the state court. Ylst v. Nunnemaker, 501 U.S. at 803; Qutrama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993). If "the last reasoned opinion on the claim explicitly imposes a procedural default, [then a habeas court] will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits," Ylst v. Nunnemaker, 501 U.S. at 803. Here, because the lower state court rejected, on procedural grounds, petitioner's claim that he was denied the effective assistance of counsel, there is no reason to doubt that the Appellate Division and the New York Court of Appeals, like the trial court relied on the procedural bar to reject petitioner's application.
When a claim has been procedurally defaulted in state court, a federal court may address the merits of the claim if petitioner showed either (1) cause for the procedural default of the claim, and that he will he prejudiced should the Court not review the claim, Edwards v. Carpenter, 529 U.S. 446, 451 (2000), or (2) that a fundamental miscarriage of justice will occur if the habeas court does not review the claim, see Coleman v. Thompson, 501 U.S. at 750, or (3) that the state procedural rule that prevented state court review of the merits of the claim was not "firmly established and regularly followed," Ford v. Georgia, 49S U.S. 411, 423-24 (1991). Here, petitioner has not attempted to make any of the first two showings in this court, and he cannot establish the third,
The existence of cause for a petitioner's procedural default will ordinarily turn on whether the petitioner can show that some objective factor external to the defense impeded counsel's efforts to comply with a state's procedural rules. "`[A] showing that the factual or legal basis for a claim was not reasonably available to counsel, or that "some interference by officials" made compliance impracticable, would constitute cause under this standard,'" Amadeo v. Zant, 486 U.S. 214, 222 (1988), quoting Murray v. Carrier, 477 U.S. at 488. See Strickler v. Greene, 527 U.S. 263 (1999).
Constitutionally ineffective assistance of counsel can constitute cause only if an independent Sixth Amendment claim has been previously submitted to the state courts, See Edwards v. Carpenter, 529 U.S. at 446; Murray v. Carder, 477 U.S. at 488. The alleged ineffective-assistance-of-counsel claim must be exhausted like any other federal constitutional claim, even if the claim is being raised only to establish "cause" to excuse a procedural default regarding an unrelated constitutional claim. Id.; Murray v. Carrier, 477 U.S. at 488-491,
In addition to showing cause to excuse a state procedural default, a petitioner must also establish that he will be prejudiced if the court does not review his defaulted claim. Although the Supreme Court has not defined what it means by "prejudice," it has suggested that prejudice is established by showing that, but for the default, there is a reasonable probability that the outcome of the relevant proceeding would have been different. See Strickler v. Greene, 527 U.S. at 289-96; see also United States v. Frady, 456 U.S. 152, 170 (1982) (a petitioner must show not merely that the errors created a "possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions"),
In this case, petitioner has not attempted to establish either cause for his procedural default or that he would be prejudiced should the Court not review his claim, Petitioner does not, and cannot, rely on any claim of ineffective assistance of appellate counsel as cause for failure to raise an ineffective assistance of trial counsel claim on petitioner's direct appeal because petitioner has not raised, much less exhausted, an independent ineffective-assistance-of-appellate-counsel claim in state court,
The Supreme Court has held that the "miscarriage of justice" exception extends to cases of "actual innocence," that is, when the constitutional violation "has probably resulted in the conviction of one who is actually innocent [of the offense of which he has been convicted]." Murray v. Carrier, 477 U.S. at 496; see Schlup v. Delo, 513 U.S. 298 (1995). "To be credible," an actual innocence claim requires a petitioner to present "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," Schlup v. Delo, 513 U.S. at 324. Petitioner has not claimed that he is actually innocent of the charges. He, knowingly and voluntarily pled guilty.
The grounds upon which petitioner claims that his trial attorney was ineffective — that counsel denied petitioner the right to appear before the grand jury and that counsel failed to further pursue the issue of whether the state had turned over certain Rosario material — are wholly without merit. Absent any new reliable evidence to establish that petitioner was actually innocent of the charges to which he pled guilty, petitioner cannot establish a miscarriage of justice. There is no reason to excuse petitioner's procedural default.
The procedural bar was both "firmly established and regularly followed." In Ford v. Georgia., 498 U.S. 411, 423-24 (1991), the Supreme Court held that a habeas claim is not barred when the procedural rule invoked by the state court is not "firmly established and regularly followed," The Court provided that such a rule is not "firmly established and regularly followed" when an examination of other state court decisions demonstrates that the court applied an ad hoc rule, or a rule that has not been consistently applied in similar circumstance, or a rule that developed only after the petitioner's trial and, accordingly, is not considered an adequate ground to bar federal habeas review. Ford v. Georgia, 498 U.S. at 424; See also Garcia v. Lewis, 188 F.3d 71 (2d Cir. 1999) (court discussed law and rejected the petitioner's claim that th preservation rule was not regularly applied in circumstances similar to petitioner's case). Ultimately, the issue is not whether the state court was correct in its application of state law, it is whether there was a "fair and substantial basis" in state law for the ruling. Rhagi v. Artuz, Docket No. 02-2015, 2002 U.S. App. LEXTS 22343 (2d Cir. Oct. 25, 2002),
Here, petitioner contends that he was denied the effective assistance of trial counsel owing to counsel's failure to allow petitioner to testify before the grand jury and to further pursue the issue of whether the state had disclosed a writing that contained petitioner's license plate number that a detective testified he had received from one of the victims. But in state court, a defendant must raise all claims that are apparent on the record on direct appeal. See People v. Angelakos, 70 N.Y.2d 670, 672-73, 518 N.Y.S.2d 784 (1987); People v. Nusbaum, 222 A.D.2d 723, 725, 634 N.Y.S.2d 852, 854 (3d Dept. 1995). On petitioner's direct appeal, the only claims that he presented were whether the hearing court erred in denying suppression of his statements and the line-up identifications of him as the fruits of a warrantless arrest, and whether the state failed to disclose Rosario material before the suppression hearing. Thus, because petitioner, in fact, failed to raise his on-the-record ineffective assistance of counsel claim on his direct appeal, there was a fair and substantial basis in state law for the lower court to find that petitioner's ineffective assistance of counsel claim was procedurally barred, and, therefore, that procedural bar constitutes an adequate and independent ground to bar federal habeas corpus review of petitioner's claim,
Were this court to review the claim on the merits it would be found frivolous. Counsel at both the trial and appellate level acted properly. Any Grand Jury mistake is cured by the verdict. Counsel for tactical reasons in a ease such as this would not want defendant to testify there.
XIV. Conclusion
Those claims not discussed in this memorandum are frivolous.
The petition for a writ of habeas corpus is denied.
No certificate of appeal ability 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.