Opinion
01-CV-3073 (JBW), 03-MISC-0066(JBW)
October 30, 2003
MEMORANDUM JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on tins matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on May 11, 2001. Petitioner (sometimes referred to as defendant) claims:
1) Conviction obtained pursuant to an unlawful arrest. Defendant was not clearly identify by the testifying officers. Clothing did not match.
2) Grand Jury — right to appear denied, Defendant never appeared before the Grand Jury nor did defendant waive or authorize counsel to waive appearance.
3) Denial of effective assistance of counsel. Defendant submitted motion to replace ineffective counsel and was never granted new counsel. Motion was placed on court calendar for 12/3/99; however, no further response was received
4) Prosecutions failure to produce Rosario material: tape recording. Testifying officer claimed to have radioed a positive identification of suspect and also relayed activities of the persuit of the defendant; however, the recorded transmission was never produced.
Petitioner was convicted, after a jury trial, in the Supreme Court of the State of New York, Queens County, of criminal possession of a weapon in the third degree pursuant to N.Y.Penal Law § 265.02(4) and criminal possession of a weapon in the fourth degree pursuant to N.Y. Penal Law § 265, 01(1). On October 14, 1958 petitioner was sentenced to concurrent terms of imprisonment of two to four years and one year, respectively, and he is currently incarcerated pursuant to the judgment.
The evidence supports the following statements:
While he was issuing a summons on 180th Street in Jamaica, Queens, on the morning of January 30, 1996, a distressed woman approached Sanitation Police Office Angelo Gentile and directed him towards a black male wearing a black coat and hat (T. 450). Officer Gentile saw this man — petitioner — coming down the steps from a building and asked him to halt, When petitioner continued to run, Officer Gentile pursued him until petitioner climbed onto a red brick structure and went out of sight, At this point, Officer Gentile called for backup,
Police Officer John Entenmann responded to the radio call within minutes, He climbed onto the roof of the same structure, a garage, where petitioner was last seen and found a .38 caliber semi-automatic pistol (T. 650 475-76), From the roof of this garage, Officer Entenmann looked into the adjoining auto sales Jot that was secured by a twelve-to-fifteen-foot fence coiled with razor wire and observed petitioner, wearing a white Nike shirt, stuffing something into a van (T. 476). The officer lost sight of petitioner for about 30 seconds to a minute but then observed him re-emerge from behind the van (T. 477-78). The officer asked petitioner what he was doing (T. 478). Unconvinced by his response that he worked there, the officer asked petitioner to produce the keys to unlock the gates of the lot, which petitioner was unable to do (T. 478-79), The officer then radioed to other officers, directing them to the location and informing them that he had a possible suspect in the car lot ( Mapp Huntley, T. IQ, 33034). He directed petitioner to climb over the fence of the lot, where the other police officers were waiting to arrest him.
Another police officer Chris Dimarzo, searched the rear of the gray van and discovered a black ski coat (T. 479-80). He turned the coat to Officer Entenmann who found a dagger inside the coat (T.480-81),
Petitioner was taken to the police station where Officer Entenmann read him his Miranda rights. Petitioner then told Officer Entenmann that he had gone to a house on 180th Street with a dagger to rob the occupants of drugs (T. 496), Petitioner informed the officer that the people in the house had given him a gun, the same, 38 caliber handgun that Officer Entenmann had recovered, and chased him into the yard.
Detective Christopher Scrobe, an expert in ballistics, examined the handgun and concluded that the firearm was operable, and the ammunition in it was fully operable (T. 653).
On behalf of petitioner, retired Detective Robert Hussey testified that he was unable to discover any latent fingerprints on the gun. Petitioner's Arguments On Appeal
Petitioner appealed his conviction, to the Appellate Division, Second Department. He argued that there was insufficient evidence to convict him, and that the court had imposed a harsher penalty than he merited in an effort to punish him for having rejected a plea offer and going forward with the trial
Specifically, petitioner argued that Officer Entenmann's testimony linking petitioner to the crime was too tenuous to be credible. Id. at 8-10. Petitioner's clothes did not match the description of the clothes provided by Officer Gentile. Id. at 8-9. Unlike the armed black male wearing a black jacket and hat — the description provided by Officer Gentile — petitioner was wearing a T-shirt and no hat at the time that he was arrested. Id. Moreover, Officer Entenmann's failure to memorialize petitioner's critical admissions regarding the weapons in a single document rendered his testimony suspicious since he was relying upon his memory regarding events that had occurred more than two-and-a-half years ago. Id. at 10.
With respect to his sentencing, petitioner asserted that the trial court's sentence of two to four years for criminal possession of a weapon in the third degree and one year for criminal possession of a weapon in the fourth degree was far more severe than the prosecution's plea offer of a sentence recommendation of two to six years for this case and two other pending cases. Id., at 10-11, Petitioner argued that the disparity between the sentencing and the plea offer demonstrated that the trial court intended to punish him for exercising his right to a jury trial. Id., at 11. Accordingly, petitioner requested that the Appellate Division modify his sentence to run concurrently with his previously imposed sentences. Id. at 10-11.
The Appellate Division affirmed petitioner's conviction. People v. Excell, 271 A.D.2d 545, 705 N.Y.S.2d 903 (2d Dep't 2000), It held that, in"[v]iewing the evidence in the light most favorable to the prosecution", there was sufficient evidence to establish petitioner's guilt beyond a reasonable doubt. 271 A.D.2d at 545, 705 N.Y.S.2d at 903. "[Resolution of issues of credibility, as well as the weight to be accorded to the evidence presented", noted the court, alluding to Officer Entenmann's testimony, "are primarily questions to be determined by the jury, which saw and heard the witnesses," Id. It did not disturb petitioner's sentence, since it was "neither harsh nor excessive" nor imposed with an intent to punish petitioner for exercising his right to a jury trial. 271 A.D.2d at 546, 705 N.Y.S.2d at 903.
Petitioner's Application For Leave To Appeal To The New York Court of Appeals
Petitioner made an application for leave to appeal to the New York Court of Appeals by letter dated May 9, 2000, incorporating the same arguments that he had made in his appellate brief. The Court denied leave to appeal on June 20, 2000. People v. Excett, 95 N.Y.2d 834, 713 N.Y.S.2d 141 (2000).
Petitioner's Motion to Replace Counsel
After his appellate counsel filed petitioner's appellate brief, and while the appeal was pending, petitioner made a motion for reassignment of appellate counsel, which was dated October 29, 1999,
Petitioner appeared to be arguing that his appellate counsel should be replaced because she had failed to include certain issues in her appellate brief. Petitioner asserted that his counsel should have argued that the People violated People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 886 (1961), by failing to provide a tape evidencing Officer Entenmann's radio call to other police officers concerning his identification of the perpetrator and that the People engaged in prosecutorial misconduct by allowing false testimony at trial and making prejudicial comments during summation.
The Appellate Division, Second Department, summarily denied petitioner's application by Order dated December 15, 1999,
Petitioner's CPL 6 440 Motion
By motion dated May 3, 2001, Exhibit I, hereto, petitioner sought to vacate his judgment of conviction pursuant to New York Criminal Procedure Law ("CPL") § 440, 10 on the following grounds, some of which were similar to the issues he had raised in his motion for reassignment of appellate counsel. Petitioner claimed: (1) that the prosecution committed reversible error by allowing false testimony at trial; (2) that the felony complaint was defective and failed to meet the requirements of CPLR § 190, 30(2); (3) that the prosecution committed prosecutorial misconduct by improperly commenting on petitioner's admissions to the police as well as by connecting petitioner to a crime for which he was not charged; (4) that the prosecution committed Rosario violations; (5) that he was denied effective assistance of trial counsel because counsel failed to properly investigate the case; and (6) that the evidence was insufficient to prove his guilt beyond a reasonable doubt.
By decision dated June 8, 2001, petitioner's CPL § 440 motion was denied on procedural grounds holding that petitioner should have raised them on direct appeal and to the extent that he did not raise them he was now precluded, Additionally, with respect to petitioner's claims of prosecutorial misconduct and of ineffective assistance of counsel, petitioner's claim was based on unsupported and conclusory allegations.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 19% ("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 ill 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 appeal 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 he 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 riling a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup. Ct R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998),
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground," Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted, . . ." 28 U.S.C. § 2244(d)(2), The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations, Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is `properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar," (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bethea v. Girdich, 293 F.3d 517, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ, 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000), Although the Supreme Court has now declared that AEDPA `s one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of ` extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA," Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989), "This exhaustion requirement is. — grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "Stale 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 Hams v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett 98 F.3d 721, 724-25 (2d Cir. 1996), When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at * 15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id., at 321, "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful" Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const, amend. VI, This tight 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 he relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness measured under "prevailing professional norms," id., at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed," Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold," Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id., at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same), The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hake, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No, 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel, See Claudia v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law, Estelle v. McGuire, 502 U.S. 62, 68 (1991), Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)), Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976), The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003),
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential dements 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-MTSC-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); Planked v. Keane, 97-CV-1992, 03-MTSC-006G (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 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-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.
In ground one of his petition, petitioner claims that his conviction was obtained pursuant to an unlawful arrest because he was "not clearly identified by the testifying officers. Clothing did not match." He did not make this point in his appellate briefer in his collateral motions, Based on a review of the transcript of the Mapp/Huntley hearings on April 16, 1997, it appears that petitioner is making a Fourth Amendment claim, i.e., that the police had no probable cause to arrest him, and that the evidence of the dagger seized from him as a result of this unlawful arrest should have been suppressed.
Petitioner is procedurally barred from raising this issue in his petition not only because he failed to raise it in his direct appeal, but also because Stone v. Powell, 428 U.S. 465, 482 (1976) precludes habeas courts from granting relief based on claims that evidence obtained in an unconstitutional search or seizure was introduced at trial after the full opportunity to obtain a ruling in the state courts.
On the facts as well as the law, this claim lacks merit.
B.
Petitioner claims that he is entitled to habeas relief on the ground that he was denied his right to appear before the grand jury. Petitioner is procedurally barred from raising this issue. This claim does not implicate federal constitutional rights,
There is nothing in the record to indicate that petitioner was denied his right to appear before the grand jury, but assuming, for the sake of the argument, that such a right was somehow denied to him, his remedy was to seek dismissal of his indictment under CPL § 21035 no later man five days after arraignment, CPL § 190.50(c). By failing to make a motion to dismiss within the requisite time period, petitioner waived this issue in state court. People v. Reddy, 108 A.D, 2d 945, 484 N.Y.S.2d 934, 936 (3d Dep't 1985), Thus, having procedurally defaulted in state court, petitioner is procedurally barred from raising this issue in federal court. Nor did petitioner attempt to raise this claim on direct appeal. Having already taken the one direct appeal to which he is entitled, petitioner cannot now satisfy the exhaustion requirement. See Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991).
Petitioner's claim of a defect in the grand jury proceeding does not implicate any of his federal constitutional rights. A petitioner's right to bring an application for a writ of habeas corpus in the federal courts is limited to claims that he is "in custody in violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2254. Since "[t]he right to testify before a grand jury is a state statutory right, and is not of constitutional dimension," petitioner's claim that his right to appear before a grand jury was violated is not cognizable. See Alexander v. Louisiana, 405 U.S. 625, 633 (1972), Claims based on alleged defects in the grand jury proceedings are not reviewable in a petition for habeas corpus relief. See Lopez v. Riley, 865 F.2d 30, 32-33 (2d Cir. 1989) (grand jury errors not open to attack after conviction). After a full trial, such claims make no sense.
This claim lacks merit.
D.
Petitioner alleges ineffective assistance of counsel, incorporating by reference his state court motion to replace appellate counsel.
Petitioner's motion for reassignment of counsel does not satisfy the exhaustion requirement, As the New York Court of Appeals has held, "a common-law coram nobis proceeding brought in the proper appellate court is the only available and appropriate procedure and forum to review a claim of ineffective assistance of appellate counsel," People v. Bachert, 69 N.Y.2d 593, 516 N.Y.S.2d 623 (1987), Petitioner's option to pursue a writ of coram nobis is not foreclosed since there is no time limit for filing such a writ. Id. This court might dismiss the petition without prejudice so as to give the petitioner the opportunity to exhaust it in state court or, alternatively, give the petitioner the option to amend the petition by deleting the unexhausted claims and proceed only with the exhausted claims. Rose v. Lundy, 455 U.S. 509, 520-22 (1982). Pursuant to the 1996 amendments to the habeas corpus statute, courts now are expressly permitted to deny applications for writs of habeas corpus "on the merits, notwithstanding a petitioner's failure to exhaust state remedies." Cowan v. Artuz, 96 F. Supp.2d 298, 304 (S.D.N.Y 2000) (citing to 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,") This is especially so in cases where the unexhausted claim is "patently frivolous."
Here, petitioner's claim of the ineffectiveness of appellate counsel is frivolous. The standard for assessing competency of counsel, including appellate counsel, is based on Strickland v. Washington, 466 U.S. 688 (1984), See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Cowan, slip op. at *14; Espeso v. Artuz, 2000 U.S. Dist. LEXIS 18628, slip op. at *12 (S.D.N.Y. October 18, 2000), In Strickland, the Court held that a defendant seeking to establish a claim of ineffective assistance of counsel must show: (1) "that counsel's performance was deficient" . . . that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment;" and (2) "that the deficient performance prejudiced the defense" thereby resulting in depriving "the defendant of a fair trial, a trial whose result is reliable," 466 U.S. at 687. In evaluating the effectiveness of counsel, "judicial scrutiny of counsel's performance must be highly deferential," 466 U.S. at 689, Thus, a court cannot evaluate counsel's decision in hindsight; rather, it must:
judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified facts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case. At the same time, the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.466 U.S. at 690.
In attempting to demonstrate that appellate counsel's performance was deficient based on a failure to raise a claim, a petitioner must demonstrate more than the omission by appellate counsel of a non-frivolous argument; the petitioner must also show that but for the failure to raise the argument, there is a reasonable probability that the outcome of the appellate process would have been different. See Jameson v. Coughlin, 11 F.2d 427, 429 (2d Cir), cert. denied, 513 U.S. 888 (1994); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.), cert. denied, 513 U.S. 820 (1994); Claudia v. Scully, 982 F.2d 798, 803 (2d Cir. 1993), cert. denied, 508 U.S. 912 (1993).
An appellate counsel does not have a duty to raise every colorable claim on appeal, and, in fact, can use his or her reasonable discretion to determine which claims represent the petitioner's best opportunities for obtaining a reversal of a conviction. See Jones v. Barnes, 463 U.S. at 751-53.
Appellate counsel raised the most viable claims that could have been raised, She reviewed the record and argued that the People had failed to prove petitioner's guilt beyond a reasonable doubt and that his sentence was harsh and Excessive. Petitioner's Appellate Brief, Exhibit A to the Affidavit, at 8, Aside from Officer Entenmann's allegation that petitioner had admitted to possessing the weapons, appellate counsel argued, the People had no other proof. Officer Gentile could not identify the petitioner as being the perpetrator. Id., He described the perpetrator as wearing a black jacket and hat. Petitioner was wearing a white T-shirt and no hat at the time that he was arrested, Id., Furthermore, petitioner did not have any weapons on him when he was arrested. The gun was found on a roof. The dagger was found in a jacket with no proof being established that it was petitioner's jacket. Id., at 8-9. Officer Entenmann had testified to seeing petitioner stuff "something" into the van, but he could not see whether or not it was the jacket at issue. Id. at 9.
Then appellate counsel focused her attack on Officer Entenmann's credibility. Without calling the officer a liar, since there was nothing in the record that could have supported such an assertion, she argued that the officer would have memorialized petitioner's admission concerning his possession of the gun and the knife had the petitioner actually made it. Id. at 9, The fact that this alleged admission did not appear in his memo book, the complaint report or any other document that he prepared, and that he recounted it two-and-a-half years after the incident, appellate counsel argued, cast doubt on his credibility. Id.
Appellate counsel's secondary attack on petitioner's sentence was equally valid. She pointed out that petitioner's aggregate sentence was eight and one-half years to twenty-three and one-half years for this and two other convictions and was approximately four times the prosecution's pre-trial offer. Id. at 11. Therefore, she argued that the trial court was motivated to punish petitioner for having exercised his right to jury trial Id.
This claim has no merit.
D.
The Rosario complaint of petitioner is based primarily on his contention that Officer Entenmann lied. The trial court was in a position to decide that. It found against petitioner. The 911 tape would not have helped.
This claim has no merit.
E.
Petitioner's argument that the People committed prosecutorial misconduct by referring to his statement to the officer in their summation, and that his appellate counsel should have discussed this in her brief, is without foundation. This claim was raised by the petitioner in his CPL § 440 motion and rejected, in part, by the trial court on the grounds that it was conclusory and without support. Given that there was nothing in the record to show that Officer Entenmann committed perjury or that the People were aware of perjury, the People were entitled to sum up on the testimony of the witnesses they presented at trial, including that of Officer Entenmann. It was up to the trial court to charge the jury, which it did in this instance, to determine whether the People had satisfied their burden of proving that petitioner had made such a statement to the officer and whether he had done so voluntarily and freely, without any compulsion (T. 756-61). Under the circumstances, appellate counsel was justified in not inserting this extraneous argument concerning this aspect of the People's summation.
The trial court had advised the prosecutor prior to trial not to bring out the substance of the conversation between the distressed woman and Sanitation Police Officer Gentile in her questioning of any of the witnesses, including the fact that the woman had claimed to Officer Gentile that he had robbed her, on the grounds that the prejudice to the petitioner would outweigh the probative value of such statement (T. 411, 4 18, 425-26). The People adhered to the court's ruling. The People's reference to the robbery in their summation had nothing to do with bringing out the substance of the conversation between the distressed woman and Officer Gentile. The reference to robbery came from Officer Entenmann's testimony concerning petitioner's confession at the precinct. Petitioner had informed him that he had gone to the area in question to rob the occupants of 90-62 180th Street of drugs. This testimony had nothing to do with the trial court's earlier ruling and was appropriate, The People did not err in referring to petitioner's intention to rob in their summation.
This claim has no merit.
F.
Petitioner requests habeas relief on the grounds that the prosecution violated Rosario by failing to produce the tape recording containing Officer Entenmann's radio identification. Petitioner raised this claim in his CPL § 440 motion but it was denied on the grounds that he had failed to raise it on his direct appeal. The fact that petitioner defaulted on this claim in state court precludes him from raising this claim in the habeas court.
This claim has no merit.
G.
No other claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the 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.