Opinion
02-CV-04908, 03-MISC-0066 (JBW)
October 24, 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 September 4, 2002, Petitioner (sometimes referred to as defendant) claims:
Ground One. Defendant was not proven Guilty Beyond a Reasonable Doubt, by Legally Sufficient Evidence.
Supporting Facts: Based upon the Credibility of Lenore Heron, and Michael Greene, and that the People Failed to prove that Greene suffered serious physical injury, as a result of his shooting, by the Defendant,
Ground Two: The Trial Court's Refusal to Charge Assault in the Second Degree, was an Abuse of Discretion.
Supporting Facts: The Trial Court committed Reversible Error, by refusing to Charge Jury on Assault in the Second Degree, Based upon the People's Failure to prove Michael Greene, suffered Serious Physical Injury.
Ground Three: The Trial Court Erred in allowing Testimony.
Supporting Facts; The Trial Court Erred by allowing Lenore Heron, to Testify about Independent Source Identification, at Trial, and also Failed to reopen the Wade Hearing to Determine if there as an Independent basis for her Identification.
Ground Four; The Sentence was not Legally Imposed and it was harsh and Excessive.
Supporting facts: First, the Mandatory Consecutive Five (5) Year Sentence, is in Violation of P, L, § 265, 09(2), and also Harsh and Excessive, Due to Defendant's long History of Alcohol Abuse.
The evidence supports the following statements:
Petitioner, William Davis, was indicted by a Grand Jury and charged with attempted second degree murder (count 1), first degree assault (count 2), and first degree criminal use of a firearm (count 3) Pre-trial hearings and a jury trial were held during January and early February, 1998.
A bifurcated hearing was held to determine whether a lineup procedure involving petitioner was unduly suggestive, and whether a witness would be allowed to make an in-court independent source identification of him. Detective Joseph Brittelli testified regarding the lineup held on July 4, 1997, and Lenore Heron testified about her observations of petitioner during the early morning hours of July 4th.
Lenore Heron, who was fourteen years old, lived at 66 Perry Street in West Babylon, New York with a variety of relatives including her Aunt Rosie (Evelyn Rose Miller). At about 1:20 a.m. on July 4, 1997 Lenore was standing with William Mosely in front of her house. Michael Greene, her Aunt Rosie's boyfriend, left the house and rode away on his bicycle. He rode down a path into the wooded lot across the street from the house. Lenore then heard a noise and then a "pop," which sounded like a firecracker, Lenore then heard Michael Greene say words to the effect of "Nigger, why did you shoot me?"
Lenore heard a second voice, which she did not recognize, say "I shoot you again," or words to that effect. She heard a second "pop" and petitioner then came out of the woods carrying a handgun. Petitioner came up to Lenore calling her Rosie, When Lenore told petitioner that she was not Rosie and that Rosie was in the house, petitioner walked away. Lenore had seen petitioner at 66 Peary Street before, talking with her Aunt Rosie. She knew his first name was William.
Between about 8:00 and 8:30 a.m. the same day Lenore viewed two lineups. Each time she identified petitioner as the person she saw coming out of the woods, At the conclusion of the hearing the court suppressed the lineup identification because the fillers were not sufficiently similar in appearance to petitioner, Specifically, the court found that the lineup was unduly suggestive because petitioner was the only participant in the lineups who had a goatee. The court, however, also found that there was an independent source for Lenore's in-court identification of petitioner.
At trial evidence established that Michael Greene was the father of one of Rosie Miller's children, and that she was pregnant with Greene's second child, Rosie, however, was also seeing and having sexual relations with petitioner. Petitioner and Greene met on July 1, 1997 and late on July 3, 1997 (at about 10:00 p.m.) petitioner made a telephone call to Rosie Miller, She did not talk with petitioner but petitioner told the person who answered the telephone that he was going to do something to Greene and that Greene not William was the one who was going to get hurt.
Green was brought to the hospital emergency room, Greene had a round puncture wound, approximately one-quarter inch in diameter, consistent with a bullet wound. X-rays showed a bullet lodged in the muscle behind Greene's abdominal cavity. There was no exit wound. Surgery was performed and it was determined that the bullet had entered Greene's abdominal cavity below his ribs, lacerated and penetrated the liver, exited the rear of the liver and lodged in the muscle behind the liver. The surgeon repaired some damage, removed blood and fluid, and inserted drains to control future bleeding and excavate fluids from Greene's abdominal cavity, The bullet was not removed. The wound was closed leaving a permanent scar five to six inches long. Greene testified that he was in substantial pain until the end of October 1997, and at the time of trial still felt discomfort when he lifted something heavy or moved in a certain way.
During the trial defense counsel made an application to re-open the Wade hearing. After she testified at trial Ms. Heron revealed that she had lied at the Wade hearing. She indicated that she knew who petitioner was on July 1st and July 4th and that she was told not to identify petitioner because threats were made against her family. The trial court denied the application to re-open the Wade hearing. There was no claim in the record that her identification of petitioner at the hearing was incorrect.
The jury found petitioner guilty as charged on all three counts of the indictment. He was sentenced on March 10, 1998 to serve concurrent sentences of twenty-five (25) years to life imprisonment.
Petitioner appealed and argued that:
POINT I AT THE WADE HEARING THE PEOPLE FAILED TO PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CRUCIAL EYEWITNESS' IDENTIFICATION OF APPELLANT WAS NOT TAINTED BY THE POLICE LINEUPS, FOUND BY THE TRIAL COURT TO HAVE BEEN SUGGESTIVE, CONSEQUENTLY, THIS COURT SHOULD REVERSE THE TRIAL COURT'S ORDER DENYING SUPPRESSION, VACATE APPELLANT'S CONVICTION AND DISMISS INDICTMENT 1650-97.
POINT II THE TRIAL COURT ERRED WHEN IT REFUSED TO REOPEN THE WADE HEARING OR TO STRIKE THE TRIAL TESTIMONY OF THE CRUCIAL EYEWITNESS, LENORE HERON, WHO ADMITTED SUBSEQUENT TO HER TRIAL TESTIMONY, THAT SHE HAD PERJURED HERSELF AT THE WADE HEARING, THE TRIAL COURT'S ORDER DENYING SUPPRESSION MUST BE REVERSED, APPELLANT'S CONVICTION VACATED AND THE INDICTMENT DISMISSED.
POINT III THE PEOPLE FAILED TO PROVE APPELLANT'S GUILT OF THE CRIMES CHARGED BEYOND A REASONABLE DOUBT. HIS CONVICTION MUST BE REVERSED AND THE INDICTMENT DISMISSED.
POINT IV SINCE THE PEOPLE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT THE VICTIM SUFFERED SERIOUS PHYSICAL INJURY, APPELLANT'S CONVICTION OF ASSAULT FIRST DEGREE MUST BE REDUCED TO ASSAULT SECOND DEGREE. APPELLANT'S PRESENT SENTENCE FOR ASSAULT FIRST DEGREE MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING.
POINT V A REASONABLE VIEW OF THE EVIDENCE EXISTED UNDER WHICH APPELLANT WAS INNOCENT OF ASSAULT FIRST DEGREE BUT GUILTY OF ASSAULT SECOND DEGREE, CONSEQUENTLY THE TRIAL COURT ERRED WHEN IT REFUSED THE DEFENSE REQUEST TO CHARGE THE JURY THE LESSER-INCLUDED-OFFENSE OF ASSAULT SECOND DEGREE, APPELLANT'S CONVICTION OF ASSAULT FIRST DEGREE MUST BE REVERSED AND THAT COUNT OF THE INDICTMENT REMANDED TO THE TRIAL COURT.
POINT VI APPELLANT WAS INDICTED AND CONVICTED UNDER PENAL LAW § 265,09 OF CRIMINAL USE OF A FIREARM FIRST DEGREE BASED ON HIS POSSESSION OF A LOADED DEADLY WEAPON, HOWEVER, THE CONSECUTIVE FIVE YEAR SENTENCES MANDATED BY PENAL LAW § 265.09 REQUIRE THE DISPLAY OF A LOADED WEAPON, SINCE APPELLANT WAS CONVICTED OF THE POSSESSION OF, BUT NOT THE DISPLAY OF, A LOADED WEAPON, THE FIVE YEAR CONSECUTIVE TERMS ADDED ONTO APPELLANT'S 20-LIFE SENTENCES UNDER COUNTS 1 AND 2 MUST BE VACATED.
POINT VII THE SENTENCE IMPOSED UPON APPELLANT WAS HARSH AND EXCESSIVE AND SHOULD BE MODIFIED IN THE INTEREST OF JUSTICE.
On May 29, 2001 the Appellate Division, Second Judicial Department, affirmed petitioner's judgment of conviction. The court held that: the in-court identification of petitioner was based on the witness' independent observation of him; petitioner's guilt was proven beyond a reasonable doubt and the verdict was not against the weight of the evidence; and, the sentence was not excessive. The court also held that petitioner's remaining contentions were without merit.
Petitioner sought leave to appeal to the New York State Court of Appeals. The Court of Appeals denied the application on August 8, 2002. See, People v. Davis, 283 A.D.2d 655, 725 N.Y.S.2d 878 (2d Dept.), lv. to app. den., 96 N.Y.S.2d 917, 732 N.Y.S.2d 634 (2001).
II. AEDPA
Under the Antiterrorism and Effective Death Penally 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 filed1 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, 125 (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. Walter 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 be 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, 2731 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 men 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 ", 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 `Tell 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 whole11 (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 no 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. 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. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 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 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 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); Martinez v. Greiner, 99-CV-4663, 03-MTSC-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); Beniquez v. Bennett, 00-CV-0935, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 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); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0066, 03-MISC-006 (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 argues that a writ of habeas corpus should be issued because: he was not proven guilty beyond a reasonable doubt; the trial court failed to charge the lesser included offense of second-degree assault; the trial court erred in allowing his in-court identification based on an independent source, and, the sentence was not legally imposed and was harsh and excessive. The Appellate Division of the New York Supreme Court rejected each of these arguments when they were raised on direct appeal.
Petitioner has not established that his rights under the United States Constitution have been violated. He cannot show that the holding of the Appellate Division is contrary to or an unreasonable application of federal law as it is clearly established by the United States Supreme Court, He can not show that the state court decision is based on an unreasonable determination of the facts, 28 U.S.C. § 2254 (d).
In Sellan v. Kuhlman, 261 F.3d 303 (2d Cir. 2001), the Court of Appeals for the Second Circuit established the analytical framework used to assess whether a state court had decided a federal constitutional issue. Under Sellan the first question is whether the claim is based on "clearly established Federal law," 28 U.S.C. § 2254 (d)(1). This means that the overriding rule has been established by the Supreme Court, not that a particular set of facts has been applied to the rule: Sellan, 261 F.3d at 309, If the issue is based on clearly established Federal law, then the focus shifts to the state court decision on the issue.
According to Sellan, whether or not a state court decision explicitly refers to a federal claim or explains its reasoning with regard to a claim, is not determinative. Rather, a claim is adjudicated for the purposes of 28 U.S. C § 2254(d)(1) when it both "disposes of the claim on the merits" and "reduces it disposition to judgment," Sellan, 261 F.3d at 312. The court determines whether a claim was adjudicated on the merits by considering: "(1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999), as cited in Sellan, 261 F.3d at 314.
The evidence proved guilt beyond a reasonable doubt. The state decisions can not be successfully challenged on their merits. See "B," infra,
This claim lacks merit.
B.
On direct appeal to the Appellate Division, Davis argued that there was a failure of proof with regard to all of the charges due to a lack of witness credibility. He also argued that his conviction for first-degree assault had to be reduced to second-degree assault because the prosecution failed to prove that the victim suffered a serious physical injury as a result of being shot through the kidney.
The Appellate Division held that petitioner's guilt was proven beyond a reasonable doubt and that the verdict was not against the weight of the evidence, Petitioner now states that Lenore Heron and Michael Greene were not credible witnesses and that there was no proof of serious physical injury.
Petitioner's claims regarding proof beyond a reasonable doubt, in general, are based on clearly established federal law. The standard of proof beyond a reasonable doubt is firmly entrenched in both common law and Supreme Court precedent. The elements of a crime arc established as a matter of state law. Moore v. Duckworth, 443 U.S. 713, 99 S.Ct. 3088, 61 L.Ed.2d 865 (1979); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).
The credibility of witnesses is generally beyond the scope of sufficiency review. Schulp v. Delo, 518 U.S. 298, 330, 115 S.Ct. 851, 868, 130 L.Ed.2d 808 (1995). Weight of the evidence is a state issue.
Petitioner's first argument, that the witnesses were not credible, is generally beyond the scope of habeas corpus review. The Appellate Division specifically held that the guilty verdict was not against the weight of the evidence. The decision is not contrary to or an unreasonable application of controlling Supreme Court authority. The issue of witness credibility was extensively argued at trial and appropriately presented to the jury.
With regard to petitioner's second argument (that the prosecution did not prove that a gunshot wound through the liver was a serious physical injury) whether an injury fits within the statutory definition is, in the first instance, a matter of state law. The Appellate Division found that the evidence was legally sufficient; including, therefore, the determination that there was serious physical injury. The relevant question then is," . . ., whether, after reviewing 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. at 319, 99 S.Ct. At 2789. The determination that the gunshot wound in this case constituted serious physical injury is consistent with state decisional authority and common sense.
The determination of whether the gunshot wound to the victim is serious physical injury is defined by state law. The Appellate Division held that the elements of the crimes had been established beyond a reasonable doubt. Petitioner has not established that the Appellate Division decision is contrary to or an unreasonable application of controlling federal authority. Its decision is consistent with New York State decisional authority concerning serious physical injury. The factual determination of both the jury and the Appellate Division is not unreasonable.
There is no serious question that petitioner shot Michael Greene and caused him serious physical injury. Petitioner has not established that the Appellate Division decision, that there was proof beyond a reasonable doubt and that the jury correctly weighed the evidence, is wrong pursuant to 28 U.S.C. § 2254 (d).
Petitioner's second argument is that the trial court should have charged the lesser included offense of second degree assault under count two of the indictment, which charged first degree assault. The jury appropriately found that there was serious physical injury. This issue was argued in the Appellate Division briefs and was decided by the Appellate Decision, Although the Appellate Division did not specifically address this issue the court concluded its opinion by holding that the remaining contentions were without merit. Based on Sellan., supra, this issue will receive the deferential standard of review found in 28 U.S.C. § 2254 (d), Under any standard, neither the trial court nor the intermediate appellate court was wrong.
Although a writ of habeas corpus may not be issued based on an error of state law a determination that a jury instruction was erroneously denied can lead to a conclusion that a defendant was denied due process of law. To reach such a conclusion the federal court must determine that the state court made an unreasonable factual determination. Davis v. Strack, 270 F.3d 111 (2d Cir. 2001). Here, the gunshot wound established serious physical injury; this determination is not unreasonable.
There is no Supreme Court authority requiring state courts to charge lesser included offenses in anything other than a death penalty case, Jones v. Hoffman, 86 F.3d 46 (2d Cir. 1996).
Petitioner's claim that the trial court should have charged a lesser included offense is meritless, It was decided by the Appellate Division and petitioner has not established that the state court ruling contravenes controlling federal authority.
In the state court petitioner argued that Lenore Heron should not have been allowed to identify petitioner at trial because the unduly suggestive lineup tainted her testimony. Petitioner maintained that there could not be an independent source for his identification because of the deleterious effect of the suggestive lineup. He also contended that the pre-trial identification hearing should have been re-opened because Ms. Heron admitted at trial that she had not told the truth at the hearing.
The Appellate Division held that the in-court identification of petitioner was based on an independent source;
At the independent source hearing, the People established by clear and convincing evidence that the in-court identification of the defendant was based upon the witness' independent observation of the defendant (see, People v. Hyatt, 162 A.D.2d 713, 714, see also, People v. Thomas, 51 N.Y.2d 466, 475-475) (Exhibit D).
The identification analysis in the state court is based on clearly established federal law. In the Appellate Division petitioner cited both United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) and Stoval v. Demo, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1999 (1967), in support of his arguments, The Appellate Division held that there was an independent source and that the request to re-open the Wade hearing was without merit, Petitioner has not demonstrated that the Appellate Division's decision is contrary to, or an unreasonable application of controlling federal authority, 28 U.S.C. § 2254 (d).
The test of admissibility is whether the identification is reliable, Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140 (1977). If there were impermissibly suggestive pretrial identification procedures, reliability can be established through evidence that is independent of the suggestive procedure. Id. At 114, 2253, Factors considered to determine if an identification is independently reliable are: the opportunity of the witness to review the criminal at the time of the crime, the witness' degree of attention; the accuracy of the witness' prior description of the criminal; the level of certainty demonstrated by the witness; and, the length of time between the crime and confrontation, Neil v. Signers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 382, 34 L.Ed.2d 401 (1972), as cited in Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998). These factors are analyzed in light of the totality of the circumstances and weighed against the effect of the suggestive confrontation. Id.
Here, Lenore Heron had seen petitioner at her house before and knew that his name was William. She saw the victim ride a bicycle into a wooded lot and heard gunshots. Her attention was drawn to the sound and this resulted in her seeing petitioner walk out of the wooded lot with a gun in his hand, Petitioner walked up to Ms. Heron and spoke to her from a distance of about three feet. She then watched him walk away, Ms. Heron viewed a lineup approximately seven hours after the shooting. Although at that time her identification was hesitant, she later explained that she always knew that petitioner was the shooter, but she had been pressured not to make a positive identification.
Ms. Heron had an independent source for her identification of petitioner, The state court decision on this issue was plausible. There was no reason to re-open the Wade hearing. Petitioner has not established any deficiency in the state court decision.
This series of claims lacks merit.
C.
According to petitioner his sentence was erroneously imposed because he should not have received the mandatory five year consecutive sentence for his display and use of a loaded firearm. This issue was argued as a matter of state statutory construction, Whether the sentence could be consecutive was a matter of state law and raises no Constitutional issue.
Petitioner also argues that his sentence is excessive. However, "[n]o constitutional issue is presented where a sentence falls within the range proscribed by state statutory law," Chisholm v. Henderson, 736 F. Supp. 444, 449 (E.D.N.Y. 1990); see also, Morales v. Miller, 41 F. Supp.2d 364 (E.D.N.Y. 1999); Charris v. Artuz, 32 F. Supp.2d 139 (S.D.N.Y. 1998). Petitioner was sentenced within the appropriate sentencing range and no Constitutional issue is presented.
These claims lack merit.
D.
All of petitioner's other possible claims are frivolous.
XIV. Conclusion
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.