Guzman v. Fischer

Full title: CESAR GUZMAN, Petitioner, v. BRIAN FISCHER, Superintendent, Sing Sing…

Court: United States District Court, S.D. New York

Date published: Jul 29, 2003

02 Civ. 7448 (WK) (AJP) (S.D.N.Y. Jul. 29, 2003)

Opinion

02 Civ. 7448 (WK) (AJP).

July 29, 2003.

REPORT AND RECOMMENDATION

ANDREW PECK, Magistrate Judge

Petitioner Cesar Guzman, represented by counsel, seeks a writ of habeas corpus from his November 6, 1998 conviction in Supreme Court, New York County, of first degree robbery and second degree criminal possession of a weapon, for which Guzman was sentenced as a second violent felony offender to concurrent determinate prison terms of fifteen years for the robbery and ten years for the weapon possession. (Dkt. No. 1: Pet. ¶¶ 1-5;see also Dkt. No. 9: 11/6/98 Sentencing Transcript ["S."] at 11.) Guzman's habeas petition alleges that: (1) he was deprived of his right to effective assistance of appellate counsel (Pet. ¶ 13; Dkt. No. 2: Guzman Br. at 6-12)¹; (2) his robbery conviction was not supported by legally sufficient evidence and was against the weight of the evidence (Guzman Br. at 13-16); and (3) his sentence was excessive and deprived him of his due process rights (Guzman Br. at 17-19).

1 Guzman's petition incorporates his "Memorandum in Support of Petition for a Writ of Habeas Corpus" for the substance of his claims.

For the reasons discussed below, Guzman's petition should be DENIED.

FACTS

On February 19, 1998, Guzman and Jose Cabrera were each charged with two counts of first degree robbery, one count of second degree robbery, and one count each of second and third degree criminal possession of a weapon in connection with an incident that began shortly before midnight on February 1, 1998 at an indoor parking garage in Manhattan. (See Dkt. No. 2: Guzman Br. at 2-4; Dkt. No. 6: State Br. at 2-4; see also Ex. A: Guzman 1st Dep't Br. at 2-7.)² Guzman's Pretrial Request for Change of Counsel

2 References to exhibits are to those attached to the June 25, 2003 Affidavit of Assistant Attorney General Willa J. Bernstein, Dkt. No. 7.

At a combined Wade/Huntley suppression hearing³ on August 4, 1998, the same day that Guzman's trial was to begin, Guzman requested that the trial judge replace his counsel, Paul Greenfield, because Greenfield allegedly had not spent any time conferring with him about the case. (Wade/Huntley Hearing Transcript ["H."] 4-5.)⁴ When Greenfield informed the court that Guzman wished to discharge him (H. 4), the trial judge immediately responded:

3 Aside from Guzman's request to change counsel, the suppression hearing is not at issue in this case.

4 The two volumes of state court transcripts (hearing, trial and sentencing) are Dkt. Nos. 8-9.

There is absolutely no reason [for] that. You are a good and th[o]rough lawyer. All proper motions were made.

In fact, since you've been here, you got a hearing which the prior judge denied, based on your persuasive advocacy, and there's no way I'm relieving you on the eve of trial.

(H. 4-5.) Greenfield responded that Guzman wished to apprise the judge of the grounds for his application to change counsel, and the judge consented to hearing directly from Guzman. (H. 5.) Guzman explained:

I'm starting trial with him; right, and he ha[s]n't even spoken with me within a-half hour with my whole incarceration. The first time he decided to talk to me . . . was when they offered me eight years.⁵ At no time did I sit down to speak to him. He only spoke to me two minutes.

5 Prior to trial, Guzman was offered a plea of eight years by the District Attorney's Office. (See S. 7.).

That's just one.⁶

6 While it is not entirely clear what Guzman meant by "[t]hat's just one," Guzman's habeas counsel argues that Guzman had not finished explaining why he wanted to change counsel: "[T]he presiding judge ignored [Guzman's] complaints and summarily rejected [his] request to retain new counsel without affording him the opportunity to furnish his additional reasons for wanting to discharge his attorney." (Dkt. No. 2: Guzman Br. at 6.).

(H. 5.)

The trial court denied Guzman's request to replace counsel because the court was "sure there will be plenty of time. If he [Greenfield] needs more time, any continuance or any time to prepare [Guzman's] defense, he's going to get it." (H. 5-6.) The court proceeded with the suppression hearing. (H. 6.)

The Trial Testimony

Shortly before midnight on February 1, 1998, Harry Jean, a parking lot attendant at an indoor garage at 350 East 79th Street in Manhattan, left the garage to pick up his own car before the end of his shift. (Jean: Trial Transcript ["Tr."] 865-67, 882-83; Faustin: Tr. 583.) Jean's two coworkers, Lesly Faustin and Castin Pierre, were in the garage office on the ground floor, and Pierre used a hand-held remote control to close the gate to the garage behind Jean. (Faustin: Tr. 580-81, 583, 617; Jean: Tr. 883-84; Pierre: Tr. 952-55, 1002.) Meanwhile, Ronald Engemann, a concierge who worked at a nearby building and who was driving past the garage with his friend, spotted Guzman, who had a gun, and Cabrera outside the garage. (Engemann: Tr. 511-18, 530, 567.) Engemann saw Guzman put a mask over his face and Cabrera pull a hood over his head. (Engemann: Tr. 513, 517-18, 531, 550-52, 571.)

As the garage gate was closing, Guzman and Cabrera entered the garage and confronted Faustin and Pierre in the office. (Engemann: Tr. 513, 531; Faustin: Tr. 582-84, 618; Pierre: Tr. 955, 1002-03.) Guzman pointed the gun at the office door and ordered Pierre and Faustin to leave the office. (Faustin: Tr. 584, 618; Pierre: Tr. 955, 1003.) Guzman directed them to open the gate, and Pierre did so, using the remote control. (Pierre: Tr. 955-56, 1003.) Guzman ordered Pierre to give him the remote control and his employee identification card, and Pierre complied. (Pierre: Tr. 956, 960-62, 995-96; Faustin: 588-89.) Guzman and Cabrera led Faustin and Pierre at gunpoint to a lower level of the garage. (Pierre: Tr. 962-64, 104; Faustin: Tr. 618.)

From the car, Engemann saw Cabrera "roughing up" one of the garage workers while Guzman pointed a gun at the head of the other worker. (Engemann: Tr. 513, 518-19, 532-33, 536; Faustin: Tr. 599; Pierre: Tr. 956.) Engemann's friend left the car and screamed to get the attention of police officers he had seen down the block. (Engemann: Tr. 520.) Back in the garage, Cabrera demanded that Faustin give him the keys to a gray Porsche. (Faustin: Tr. 584, 618.) When Faustin replied that the keys were upstairs in the office, Guzman ordered Faustin to get them. (Faustin: Tr. 584-85, 587.)

By this point, Jean had driven back to the garage, where he noticed that the gate was open and the main office was empty, which he found "suspicious." (Jean: Tr. 867-68, 885.) As Jean drove into the garage, he triggered an alarm that rang on the lower levels. (Faustin: Tr. 585, 621-22; Jean: Tr. 885, 902-03; Pierre: Tr. 967,997, 1000.) When Guzman heard the alarm, he ordered Pierre to give him his employee jacket. (Pierre: Tr. 967-68; Faustin: Tr. 588-89.) Guzman dropped his own jacket on the floor, put on Pierre's jacket, and ordered Pierre to run. (Faustin: Tr. 587, 589-90; Pierre: Tr. 956-57, 964, 968, 970, 976, 1006-07, 1016-17.) Pierre complied and hid under a car. (Pierre: Tr. 970, 1000, 1017.) Guzman and Cabrera proceeded up the ramp with Faustin. (Faustin: Tr. 585, 587, 622; Pierre: Tr. 970, 972, 1005.) When Jean saw Cabrera and Guzman, who was holding a gun to Faustin's head, he quickly backed his car out of the garage. (Jean: Tr. 867-68, 872, 885-87, 894-95, 897.)

By this time, Engemann and his friend had flagged down Sergeant Gary Tricarick and Officers Robert Annesi and Christopher Mercado. (Engemann: Tr. 521-22; Mercado: Tr. 700, 721; Tricarick: Tr. 760-61, 763, 788-89, 811; Annesi: Tr. 1023-24, 1029, 1041-42.) The police entered the garage and saw Guzman pointing a gun at Faustin while Cabrera held Faustin's arm. (Tricarick: Tr. 763-64,786-87,789,791,792; see Annesi: Tr. 1042-44.) When Sergeant Tricarick drew his gun and yelled, "'police, don't move,'" Guzman and Cabrera fled down to the lower levels. (Mercado: Tr. 701-02, 712; Tricarick: Tr. 763, 770, 791-93, 814; Annesi: Tr. 1024-25, 1029, 1044.)

Sergeant Tricarick and Officer Annesi advanced halfway down the ramp to the garage's lower levels, but stopped when they determined that there were too many places where the suspects could have hidden and too little cover for the officers. (Mercado: Tr. 704; Tricarick: Tr. 771,794; Annesi: Tr. 1033, 1048-49.) Sergeant Tricarick called for a canine unit (Tricarick: Tr. 771, 794; Annesi: Tr. 1026), and told back-up officers to cover other possible exits (Mercado: Tr. 704).

Guzman, still wearing Pierre's company jacket, ran from the garage shouting "'they are inside, they are inside'" and "'go get them, go get them.'" (Engemann: Tr. 523, 526; Faustin: Tr. 594, 626; Jean: Tr. 877-78, 889; see Pierre: Tr. 976.) Engemann, Faustin, and Jean identified Guzman to the officers as one of the suspects. (Engemann: Tr. 524, 554-56, 561-62; Faustin: Tr. 594-96, 624-29; McInerney: Tr. 727, 741; Tricarick: Tr. 775-76, 808; Jean: Tr. 877-78.) Guzman ran west onto 79th Street (McInerney: Tr. 727, 730; Tricarick: Tr. 776; Jean: Tr. 878), and, after a short chase, Officer McInerney tackled Guzman on Second Avenue near 80th Street (Faustin: Tr. 596, 629-31; McInerney: Tr. 731, 750; Campanaro: Tr. 942-43). Although Guzman was still wearing Pierre's company jacket, the gun, mask, remote control, and employee identification card were not found on Guzman. (McInemey: Tr. 731-35, 752-54, 756; Campanaro: Tr. 947.)

Officer Annesi arrested Cabrera when he emerged on the main garage level a few minutes after Guzman fled. (Engemann: Tr. 524-25, 535; Faustin: Tr. 600; Tricarick: Tr. 776-77, 796, 803; Jean: Tr. 879-81; Annesi: Tr. 1028, 1035-36.) After Guzman and Cabrera were apprehended, Pierre emerged from his hiding spot and found the remote control and his identification card, with Pierre's photograph removed. (Pierre: Tr. 970-71, 977-78, 982-84, 993-95, 1000-01; Jean: Tr. 892, 901.)

The police found a black ski mask, a knit hat, and a winter jacket in the garage. (Gabelman: Tr. 409, 411-17, 425; Campanaro: Tr. 922-23, 937-38, 948-49; Annesi: Tr. 1036-37.) That afternoon, a loaded and operational .357 magnum revolver was recovered from a Mercedes Benz in the garage. (Bloncourt: Tr. 437, 440, 442, 445, 455; Halpin: Tr. 494-95, 497-99, 506-07; Colon: Tr. 1084-85, 1090.) A fingerprint lifted from a car in the garage matched that of Cabrera but none of Guzman's prints were recovered from the garage. (Barreto: Tr. 666-67, 668.)

At trial, Faustin and Pierre identified Guzman as the person who had held them at gunpoint as he took the remote control, jacket, and identification card from Pierre. (Faustin: Tr. 598; Pierre: Tr. 957-58, 966, 1020.) Jean and Engemann identified Guzman as the person who held a gun to Pierre's head on the main floor of the garage. (Engemann: Tr. 517; Jean: Tr. 869-70.) Jean and Faustin also identified the gun as the one that Guzman had used during the incident. (Jean: Tr. 882; Faustin: Tr. 603.) Sergeant Tricarick and Officers Annesi, Mercado, and McInemey identified Guzman at trial as one of the two suspects they pursued and arrested. (Mercado: Tr. 702; McInerney: Tr. 727-28; Tricarick: Tr. 763-64; Annesi: Tr. 1038.)

The defense did not present any evidence, except a "demonstration" of Guzman putting on the parking attendant's jacket. (Tr. 1091-92.)⁷ The defense motion to dismiss "on the grounds there's no prima facie case" as to either defendant was denied by the court. (Tr. 1093.)

7 In the middle of trial, co-defendant Cabrera absconded and was tried in absentia for the balance of the trial. (See Tr. 837-41, 855-63.) The jury was instructed not to speculate about his absence or draw any inference against either Cabrera or Guzman. (Tr. 862-63.)
"On October 1, 1998, Cabrera was sentenced in absentia to an indeterminate prison term of seven to 14 years. Cabrera remains a fugitive," at least as of October 2000. (Ex. B: 10/00 State 1st Dep't Br. at 3 n. 1.).

Defense Summations

The defense closing arguments emphasized that neither witness Engemann nor any of the garage attendants got a good look at the robbers, their descriptions were inconsistent, and thus there was reasonable doubt that Guzman and Cabrera were the persons who committed the crime. (E.g., Tr. 1096-102, 1113-16.) Guzman's counsel suggested that the real criminals were still hiding in the garage until after the police left. (Tr. 1112, 1128-29.)

Guzman's counsel also pointed out to the jury that the jacket did not fit Guzman, yet no witness described that fact:

I had Mr. Guzman put this jacket on. You saw how it fit him. The sleeves were about up to here.

I asked Mr. Castin [Pierre], "the guy who took your jacket and put it on, did [it] fit him?" And he said, "yeah, it fit him." You know, you saw Mr. Castin. If it's going to fit Mr. Castin, it's not going to fit Mr. Guzman.

But nobody who says they saw my client wearing a jacket happened to observe the fact that the jacket came up to the middle of his forearm. You would think somebody, that some of these people would have noticed that. Not one person.

(Tr. 1124.)⁸ Guzman's counsel also pointed out that the police did not recover the remote control or the I.D. card from Guzman when he was arrested. (Tr. 1128.) Guzman's counsel did not argue that Guzman did not intend to permanently take those items, since that was inconsistent with the Guzman-did-not-do-it defense.

8 The prosecution responded that the jacket was a "size extra large" and that it was not his "recollection that the jacket came up to mid forearm." (Tr. 1142.).

Verdict and Sentencing

On August 11, 1998, the jury convicted Guzman and Cabrera of first degree robbery and second degree criminal possession of a weapon. (Verdict: Tr. 1200-03.)

At sentencing on November 6, 1998, the court adjudicated Guzman, without objection, a second violent felony offender. (S. 3-4.)

At the sentencing hearing, Guzman's counsel, Paul Greenfield, requested that the court give Guzman the minimum sentence allowed, ten years. (S. 8.) Greenfield noted that since being released on parole in 1991 for his 1988 manslaughter conviction, Guzman had not been in any trouble prior to his instant arrest, and had been at home with his wife and two daughters for almost seven years. (S. 6, 7-8.) Greenfield also argued "that there was a significant issue of self-defense" in the manslaughter incident, and "[p]erhaps that explains why the plea was to Manslaughter." (S. 6-7.) Greenfield pointed out that, prior to the instant trial, Guzman had been offered a plea of eight years by the District Attorney's Office, and so it was not "proper" that the District Attorney should seek the maximum twenty-five year sentence because Guzman "decided to exercise his constitutional right and go to trial. . . ." (S. 7, 8.) Finally, Greenfield noted that Guzman "maintained his innocence throughout the trial." (S. 8.) At Guzman's request, Greenfield also reminded the court that no one was injured during the robbery in the garage. (S. 11.)

The court noted that Guzman had a criminal history dating back to 1988, including "some misdemeanors" (S. 8-9), and a class D felony conviction for which Guzman received a sentence of eight months — a sentence that the court deemed a "break" (S. 10). The court considered the five to fifteen years that Guzman received for his manslaughter conviction to be "a very lenient sentence for killing someone, shooting them in the head" "even if there is a substantial issue on justification." (S. 9.) The court also noted that several of the garage attendants had testified to being "fairly traumatized by the incident as anyone would be." (S. 9.) The court was not sure "how well [Guzman had] been able to adjust to living peacefully in society," and concluded that neither the maximum nor minimum sentence was appropriate. (S. 10.)

Implicitly addressing Greenfield's argument that the District Attorney was asking for a sentence that was seventeen years longer than the plea offer, the court explained that it was "sentencing [Guzman] for the crimes for which he was convicted, not for exercising his constitutional right to go to trial." (S. 10.) Finally, the court noted that "a loaded and operable firearm [was] recovered right at the incident," and that one of the witnesses testified that he thought that Guzman "actually touched the gun to his head. I don't know if he said the trigger was pulled but it was very close to using the weapon." (S. 10-11.)

The court sentenced Guzman to determinate prison terms of fifteen years on the first degree robbery count and ten years on the second degree criminal possession of a weapon count, to run concurrently. (S. 11.)

Guzman's Direct State Appeal

On direct appeal to the First Department, Guzman's new appointed counsel, David J. Klem of the Center for Appellate Litigation, argued that Guzman's robbery conviction should be reversed because it "was against the weight of the credible evidence in that [Guzman] did not intend to permanently deprive the parking lot attendant of the garage door opener, the ID card, and the jacket, or, alternatively, . . . the robbery count is duplicitous in that it charges the theft of different items that were taken at different times and for different purposes." (Ex. A: Guzman 1st Dep't Br. at 9; see also id. at 9-19.) Guzman's appellate counsel also argued that Guzman's sentence was "excessive and should be reduced in the interest of justice" to a determinate ten year sentence. (Id. at 20.)⁹

9 Guzman's counsel argued that since Guzman should have been charged with first degree attempted robbery of the Porsche and not first degree robbery of the three items taken from Pierre, "the trial court should have looked for guidance to sentences for C violent felonies" rather than to sentences for B violent felonies. (Id. at 20.).

In arguing for reversal on the grounds that the conviction was against the weight of the evidence, Guzman's appellate counsel noted that "the garage door opener was quickly abandoned in the garage when its marginal utility to [Guzman] vanished. At most, [Guzman] sought to temporarily use the item, which does not equate with permanent deprivation or appropriation." (Id. at 13.) Counsel argued further that the First Department should discount the jury's finding that Guzman intended "to permanently deprive another of" the garage door opener because "the jury was misled":

First, the trial court informed the jurors that the "main issue" in the case was identification. It then further minimized the intent-to-permanently-deprive element by giving a cursory and circular explanation. . . . Left unstated for the jurors was the statutory definition of "permanently deprive" or "appropriate". . . .Given the trial court's failure to read even the statutory definitions of "deprive" and "appropriate," [the First Department] should not vest much weight in the jury's supposed evaluation of the evidence and determination of the intent element.

(Id. at 14-15.) Defense counsel also argued that "[t]he evidence of [Guzman's] intent to permanently deprive the parking lot attendant of his identification card and his employee jacket is hardly more persuasive." (Id. at 15.) Because the items "were at best useful to [Guzman] to effectuate his escape from the garage," the First Department "should find that the evidence of [Guzman's] intent to permanently deprive the parking lot attendant of those items was inadequate as well." (Id. at 16.)

In arguing for reversal on the grounds that the robbery count was duplicitous, Guzman's counsel noted that the trial court charged the jury that the People had "to prove [Guzman's] possession of and intent to deprive of each of the three items. . . ." (Id.) Since the People did not object to the charge, that instruction became "the law of the case" (id.), and the First Department, in assessing the adequacy of the evidence, must find that the People proved that Guzman intended to permanently deprive Pierre of all three items, although "taken at different times for seemingly different purposes" (id. at 18).¹⁰

10 The prosecution responded that "the evidence clearly showed that [Guzman] intended to permanently deprive Pierre of [the three] items," as shown by the circumstances. (Ex. B: State 1st Dep't Br. at 12.) The prosecution explained:

After all, the fact that defendant [Guzman] took the items from Pierre at gunpoint and never returned them shows that he had no intention of merely borrowing the items temporarily. Indeed, after taking the items, defendant ordered Pierre three times to flee the crime scene. Obviously, if defendant had intended to relieve Pierre of the items temporarily and then return them to him, defendant would not have ordered Pierre to flee before returning or abandoning the items. Rather, at the time of the crime, defendant surely intended to keep the items to facilitate the theft of the Porsche, and possibly future car thefts, and to aid his escape. Thus, it is not surprising that the jurors concluded that defendant not only took the items from Pierre, but that defendant had no intention of ever returning the items back to their owner.

(Ex. B: State 1st Dep't Br. at 13, citations omitted.) The prosecution further argued that Guzman's argument really went to the sufficiency of the evidence, rather than its weight, and as such required preservation, but that the issue was unpreserved. (Id. at 14-18.).

On November 28, 2000, the First Department unanimously affirmed, stating:

The proof was legally sufficient and the verdict was not against the weight of the evidence. The requisite larcenous intent can be reasonably inferred from the evidence. Defendant's related arguments are unpreserved and we decline to review them in the interest of justice. Were we to review these claims, we would reject them.

We perceive no basis for reduction of sentence.

People v. Guzman, 277 A.D.2d 153, 154, 716 N.Y.S.2d 304, 304 (1st Dep't 2000). The New York Court of Appeals denied leave to appeal on February 27, 2001. People v. Guzman, 96 N.Y.2d 759, 725 N.Y.S.2d 285 (2001).

Guzman's Coram Nobis Application

On May 19, 2002, represented by his current counsel, Randall D. Unger, Guzman applied to the First Department for a writ of error coram nobis, claiming appellate counsel was ineffective for failing to challenge the trial court's denial of Guzman's pretrial application to substitute trial counsel. (Ex. E: Guzman 5/19/02 Coram Nobis Br.: see also Ex. F: Unger Aff.)

On September 12, 2002, the First Department denied the application, citing People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987), appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988). (Ex. F: 9/12/02 1st Dep't Coram Nobis Decision.) See People v. Guzman, 297 A.D.2d 905, 747 N.Y.S.2d 851 (1st Dep't 2002). At the time of the First Department's decision, no appeal to the New York Court of Appeals was available.

Guzman's Federal Habeas Corpus Petition

On September 17, 2002, represented by counsel Randall Unger, Guzman filed his current federal habeas corpus petition alleging that: (1) he was deprived of his right to effective assistance of appellate counsel (Dkt. No. 1: Pet. ¶ 13; Guzman Br. at 6-12); (2) his robbery conviction was not supported by legally sufficient evidence and was against the weight of the evidence (Guzman Br. at 13-16); and (3) his sentence was excessive and deprived him of his right to due process of law (Guzman Br. at 17-19).

ANALYSIS ¹¹

11 The State concedes that the Petition was timely and that at least the ineffective assistance and weight/sufficiency of the evidence claims are exhausted. (Dkt. No. 6: State Br. at 13 n. 5, 14-16.).

I. THE FIRST DEPARTMENT'S DENIAL OF GUZMAN'S INEFFECTIVE ASSISTANCE OF APPELLATE COUNSEL CLAIM WAS NOT AN UNREASONABLE APPLICATION OF THE STRICKLAND V. WASHINGTON STANDARD A. The AEDPA Review Standard ¹²

12 For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *11-13 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *16-18 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Wilson v.Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *5-7 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *5-7 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.);Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *8-10 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003) (Cote, D.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v.Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.);Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.);Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v.Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002), cert. denied, 123 S.Ct. 1353 (2003); Fluellen v.Walker, 97 Civ. 3189, 2000 WL 684275 at * 10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S.Ct. 1787 (2003).

Before the Court can determine whether Guzman is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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) . . . 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)(1)-(2); see also, e.g., Eze v.Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v.Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S.Ct. 1611 (2002)).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519.¹³ Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523.¹⁴ "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent."Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

13 Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001);Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

14 Accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2534 (2003); DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 123 S.Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.¹⁵

15 Accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v.Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523.¹⁶ However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from anincorrect application of federal law." Id. ¹⁷ Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable."Williams v. Taylor, 539 U.S. at 409, 120 S.Ct. at 1521.¹⁸ The Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . 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.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).¹⁹ Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

16 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2534-35.

17 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Eze v. Senkowski, 321 F.3d at 124-25; DelValle v.Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

18 Accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v.Wittner, 228 F.3d at 128-29.

19 Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Cotto v. Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).²⁰ "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted).²¹ Of course, "if there is no [state court] adjudication on the merits, then the pre-AEDPA,de novo standard of review applies." Cotto v. Herbert, 331 F.3d at 230.

20 The Second Circuit "recognized that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is 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).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93.

21 The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In denying Guzman's application for coram nobis relief regarding his claim for ineffective assistance of appellate counsel, the First Department offered no explanation other than a citation to People v. De La Hoz, 131 A.D.2d 154, 158, 520 N.Y.S.2d 386, 388 (1st Dep't 1987), appeal dismissed, 70 N.Y.2d 1005, 526 N.Y.S.2d 940 (1988). (Ex. F: 1st Dep't Coram Nobis Decision.) People v. Guzman, 297 A.D.2d 905, 747 N.Y.S.2d 851 (1st Dep't 2002). De La Hoz states that, in light of the "ever burgeoning number of applications which raise a claim of ineffective assistance of appellate counsel," the "burden lies with those raising the issue to rebut the presumption that counsel has been effective. The mere existence of an unraised issue will not suffice. A defendant must show that had the issue been raised a greater likelihood would exist that the judgment would have been reversed, or at least, modified." People v. De La Hoz, 131 A.D.2d at 158, 520 N.Y.S.2d at 388. In light of the First Department's substantive, albeit summary, ground (via citation to De La Hoz) for denying Guzman's petition, this Court concludes that the First Department adjudicated Guzman's ineffective appellate counsel claims "on the merits," and therefore that the deferential AEDPA review standards apply. See, e.g., Aparicio v. Artuz, 269 F.3d at 87,94 (summary coram nobis decision denying ineffective appellate counsel claim considered an adjudication on the merits because no indication "that the claims were decided on anything but substantive grounds"); Sellan v.Kuhlman, 261 F.3d at 314 (same); Larrea v. Bennett, 2002 WL 1173564 at *16 (First Department denial of coram nobis with citation to De La Hoz is a merits decision entitled to AEDPA defense); Rivera v. Duncan, 2001 WL 1580240 at *8 (same);Shaw v. Artuz, 99 Civ. 9754, 2001 WL 1301735 at *6 (S.D.N.Y. Oct. 19, 2001) (same).

B. The Strickland v. Washington Standard On Ineffective Assistance of Counsel ²²

22 For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at 14-16 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.);Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *26-28 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at * 13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at * 16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v.Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at * 15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.);Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v.Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.);Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064; accord, e.g., Wiggins v.Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S.Ct. 1843, 1850 (2002).

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).²³

23 Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852; Aparicio v. Artuz 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show 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, 104 S.Ct. at 2068.²⁴

24 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S.Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).

"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S.Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S.Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S.Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068 ("The result of a 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."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S.Ct. at 1953; cf. id. at 297-301, 119 S.Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland v. Washington, 466 U.S. at 695-96, 104 S.Ct. at 2069); accord, e.g., Rodriguez v.Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. at 2069.²⁵

25 Accord, e.g. Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v.Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.²⁶

26 See also, e.g. Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.

The Strickland test applies to appellate as well as trial counsel. See, e.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764.²⁷ A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonable in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. at 285, 120 S.Ct. at 764; Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d at 533-34; Rivera v. Duncan, 2001 WL 1580240 at * 10; see also Larrea v. Bennett, 2002 WL 1173564 at * 18 n. 30 (discussing the issue of whether a federal or state standard should apply).

27 Accord, e.g., Evitts v. Lucey, 469 U.S. 387, 396-97, 105 S.Ct. 830, 836-37 (1985); Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 319; McKee v.United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v.Henderson, 13 F.3d at 533; Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990).

For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of appellate counsel, in language substantially similar to the balance of this section of this Report Recommendation, see Larrea v. Bennett, 2002 WL 1173564 at * 18; Rivera v. Duncan, 2001 WL 1580240 at * 10; Fluellen v. Walker, 2000 WL 684275 at *12; Dukes v. McGinnis, 2000 WL 382059 at *9; Lugo v. Kuhlmann, 68 F. Supp.2d at 371; Franza v. Stinson, 58 F. Supp.2d at 135; Torres v. Irvin, 33 F. Supp.2d at 277; Ehinger v. Miller, 942 F. Supp. 925, 932 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Benn v. Stinson, 917 F. Supp. 202, 205 (S.D.N.Y. 1995) (Stein, D.J. Peck, M.J.).

Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288, 120 S.Ct. at 765 (citing Jones v. Barnes, 463 U.S. 745, 750-54, 103 S.Ct. 3308, 3312-14 (1983)).²⁸ Reviewing courts should not second guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. Lugo v. Kuhlmann, 68 F. Supp.2d at 371-72.²⁹ Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."Mayo v. Henderson, 13 F.3d at 533; see also, e.g., Jackson v. Leonardo, 162 F.3d at 85.

28 Accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of 'winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."); Jackson v. Leonardo, 162 F.3d at 85; Mayo v.Henderson, 13 F.3d at 533.

29 Accord, e.g., Jones v. Barnes, 463 U.S. at 754, 103 S.Ct. at 3314; Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct. 216 (1984);Fluellen v. Walker, 2000 WL 684275 at *12.

Finally, where trial counsel was not ineffective, appellate counsel cannot be faulted for choosing not to argue on appeal the ineffective assistance of trial counsel. See, e.g., Aparicio v. Artuz, 269 F.3d at 99 n. 10 ("Because the double jeopardy claim was meritless, Petitioner's trial counsel was not ineffective for failing to raise it. And thus, Petitioner's appellate counsel was not ineffective for failing to raise the ineffectiveness of trial counsel.").³⁰

30 See also, e.g., Marel v. Lord, 95 Civ. 9968, 1998 WL 17730 at *4 (S.D.N.Y. Jan. 16, 1998), aff'd, 173 F.3d 845 (2d Cir. 1999); Bradford v. Keane, CIV. A. No. CV-94-4665, 1996 WL 361593 at *20 (E.D.N.Y. June 3, 1996); Adams v.People of the State of New York, No. 95-CV-687, 1996 WL 345793 at *4 (W.D.N.Y. June 4, 1996); Todd v. Berry, 86 Civ. 9875, 1988 WL 103351 at *6 (S.D.N.Y. Sept. 27, 1988).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)).³¹ "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 699, 122 S.Ct. at 1852.

31 See also, e.g., Wiggins v. Smith, 123 S.Ct. at 2535; Bell v. Cone, 535 U.S. at 698, 122 S.Ct. at 1852;Sellan v. Kuhlman, 261 F.3d at 315.

C. The First Department's Denial of Guzman's Claim For Ineffective Assistance of Appellate Counsel Was Not an Objectively Unreasonable Application of Strickland

Guzman faults his appellate counsel's "failure to raise the claim that the trial judge's denial of his application to substitute counsel prior to trial deprived him of his right to retain counsel of his choice." (Dkt. No. 2: Guzman Br. at 6.) The First Department summarily denied Guzman's coram nobis petition asserting this ineffective appellate counsel claim. (See page 13 above.)

Under the AEDPA, this Court's only inquiry is whether the First Department's coram nobis decision rejecting Guzman's ineffective appellate counsel claim "amounted to an unreasonable application of the Strickland standard." Aparicio v.Artuz, 269 F.3d 78, 99 (2d Cir. 2001). A petitioner alleging ineffective assistance of appellate counsel must prove both that (1) appellate counsel acted objectively unreasonably in failing to raise a particular issue on appeal, and (2) absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful before the state's highest court. E.g., Smith v. Robbins, 528 U.S. 259, 285,120 S.Ct. 746, 764 (2000); Aparicio v. Artuz, 269 F.3d at 95; Mayo v. Henderson, 13 F.3d 528, 533-34 (2d Cir. 1994); see discussion in Point I. B. above.

As to the performance prong, appellate counsel acted reasonably in the issues he raised, and did not raise, on appeal. Appellate counsel ably advanced two arguably more promising claims: (1) that Guzman's robbery conviction should be reversed as against the weight of the credible evidence since the prosecution failed to prove that Guzman intended to permanently deprive the garage attendant Pierre of the remote control, the employee identification card, and the jacket, or, alternatively, that the robbery count was duplicitous in that it charged the theft of different items taken at different times and for different purposes (Ex. A: Guzman 1st Dep't Br. at 9-19); and (2) that Guzman's sentence was excessive and should be reduced in the interest of justice (id. at 20-21).

In support of his weight of the evidence theory, appellate counsel argued that because Guzman quickly abandoned the remote control, and because he only used the jacket and identification to help him escape from the garage, Guzman did not intend to permanently deprive Pierre of these items. (Id. at 13, 15-16.) In support of his theory that the robbery count was duplicitous, appellate counsel argued that since the trial court charged the jury, without objection, that the People had "to prove [Guzman]'s possession of and intent to deprive of each of the three items," the instruction became the "law of the case," and the First Department, in assessing the adequacy of the evidence, had to find that the People proved that Guzman intended to permanently deprive Pierre of all three items. (Id. at 16, 18.) Finally, appellate counsel argued that, given the nature of Guzman's offense and his criminal history, the First Department should reduce Guzman's sentence to a determinate term of ten years. (Id. at 20.) The fact that neither claim ultimately prevailed in state court (and, as discussed in Points II III below, neither prevails on this habeas petition), does not indicate that appellate counsel was ineffective. See, e.g., Franza v. Stinson, 58 F. Supp.2d 124, 135-36 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.) (Appellate Division's rejection of appellate counsel's argument not evidence of ineffectiveness) (collecting cases). The claims raised were not "significantly" weaker than the denial of substitution of counsel claim. See cases cited at pages 25-26 above. Indeed, appellate counsel's argument that the State erred in charging robbery of the three items instead of attempted robbery of the Porsche was an interesting and creative argument, especially since the police caught Guzman red-handed running from the garage.

The fact that appellate counsel chose not to raise the claim that the trial court's denial of Guzman's pretrial application to substitute counsel deprived Guzman of his right to counsel of his choice does not show that appellate counsel acted objectively unreasonably. Appellate counsel reasonably could have concluded that the claim had little chance of success. Indeed, a review of the relevant case law suggests that the denial of counsel of choice claim was unlikely to succeed.

A trial court's decision to deny a criminal defendant's request to substitute counsel, especially one made during trial or on the eve of trial, is reviewed on appeal for abuse of discretion. See, e.g., United States v. John Doe No. 1, 272 F.3d 116, 122 (2d Cir. 2001) ("We review a district court's denial of a motion to substitute counsel for abuse of discretion."), cert. denied, 123 S.Ct. 204 (2002); United States v. Simeonov, 252 F.3d 238, 241 (2d Cir. 2001);People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 557 (1990); People v. Arroyave, 49 N.Y.2d 264, 271, 425 N.Y.S.2d 282, 286 (1980) (citing cases); People v. Linares, 302 A.D.2d 256, 256, 755 N.Y.S.2d 380, 380-81 (1st Dep't 2003);People v. Garcia, 250 A.D.2d 421, 421, 673 N.Y.S.2d 91, 92 (2d Dep't), appeal denied, 92 N.Y.2d 897,680 N.Y.S.2d 61 (1998). As the New York Court of Appeals has explained, a defendant may seek to change counsel in order to delay trial, thus interfering with the interests of justice:

Although a defendant has the constitutionally guaranteed right to be defended by counsel of his own choosing, this right is qualified in the sense that a defendant may not employ such right as a means to delay judicial proceedings. The efficient administration of the criminal justice system is a critical concern to society as a whole, and unnecessary adjournments for the purpose of permitting a defendant to retain different counsel will disrupt court dockets, interfere with the right of other criminal defendants to a speedy trial, and inconvenience witnesses, jurors and opposing counsel. While it has been stated that "a myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality[,]" it is equally true that the constitutional right to defend by counsel of one's own choosing does not bestow upon a criminal defendant the absolute right to demand that his trial be delayed while he selects another attorney to represent him at trial. Whether a continuance should be granted is largely within the discretion of the Trial Judge. . . .

People v. Arroyave, 49 N.Y.2d at 271, 425 N.Y.S.2d at 286 (citations omitted); accord, e.g., id. at 273, 425 N.Y.S.2d at 287 ("As has been stated, '[t]he right to counsel does not include the right to delay.'"); United States v.John Doe No. 1, 272 F.3d at 122 ("[T]his Court has stated that, once trial has begun, a defendant has no 'unbridled right to reject assigned counsel and demand another' and that courts must impose restraints on the right to reassignment of counsel in order to avoid the defendant's manipulation of the right 'so as to obstruct the orderly procedure in the courts or to interfere with the fair administration of justice.'").

Under New York law, a defendant who requests to substitute counsel must show "'good cause for a substitution,' such as a conflict of interest or other irreconcilable conflict with counsel." People v. Sides, 75 N.Y.2d at 824, 552 N.Y.S.2d at 557; accord, e.g., People v. Welch, 2003 N.Y. Slip Op. 15903, 2003 WL 21513392 at *1 (4th Dep't July 3, 2003) ("It is incumbent upon the defendant to show good cause for the requested substitution."); People v. Dockery, 2003 N.Y. Slip Op. 13796, 758 N.Y.S.2d 57,59 (1st Dep't May 6, 2003); People v. Linares, 302 A.D.2d at 256, 755 N.Y.S.2d at 380-81;People v. Estwick, 266 A.D.2d 123, 123, 698 N.Y.S.2d 668, 668 (1st Dep't 1999), appeal denied, 94 N.Y.2d 918, 708 N.Y.S.2d 358 (2000); People v. Garcia, 250 A.D.2d at 421,673 N.Y.S.2d at 92; see also, e.g., United States v.Miranda, No. 97-1407, 152 F.3d 921 (table), 1998 WL 385886 at * 1 (2d Cir. May 11, 1998) ("Where the application is made during or on the eve of trial, 'a defendant can only substitute new counsel when unusual circumstances are found to exist, such as a complete breakdown of communication or an irreconcilable conflict.'"); Edwards v. Fischer, 00 Civ. 7929, 2002 WL 1225538 at *7 (S.D.N.Y. June 5, 2002) (applying New York's "good cause" rule on habeas review); Byas v. Keane, 97 Civ. 2789, 1999 WL 608787 at *9 (S.D.N.Y. Aug. 12, 1999) (same).³²

32 The Second Circuit, under its supervisory powers, employs a four part test "in evaluating whether a district court abused its discretion in denying a motion to substitute counsel: (1) whether defendant made a timely motion requesting new counsel; (2) whether the trial court adequately inquired into the matter; and (3) whether the conflict between the defendant and his attorney was so great that it resulted in a 'total lack of communication preventing an adequate defense,'" and (4) "a defendant's own conduct contributing to the breakdown should be evaluated." United States v. John Doe No. 1, 272 F.3d at 122-23; see also, e.g. United States v. Simeonov, 252 F.3d at 241.

Here, Guzman's request for new counsel was made on the eve of trial — at the start of the pretrial hearing immediately before the scheduled start of trial. (See page 2 above.) See, e.g., Barratt v. Garvin, 98 Civ. 1532, 2000 WL 1364352 at *5 (S.D.N.Y. Sept. 21, 2000) ("[E]leventh hour submission of an application for substitute counsel 'weighs against the finding of a Sixth Amendment violation.'"); Byas v. Keane, 1999 WL 608787 at *10 ("the timing of petitioner's application for substitute counsel [at beginning of Wade hearing] 'weighs against the finding of a Sixth Amendment violation.'").

Moreover, while Guzman complained that counsel had not spent enough time with him, the trial judge was able to say, from his own observations, that counsel was prepared and had made "[a]ll [the] proper motions." (H. 4-5.) The case law recognizes that as a basis for denying a motion to substitute counsel. See, e.g., Peterson v. Bennett, No. 01-CV-920, 2002 WL 1592600 at *5 (E.D.N.Y. July 18, 2002) (Denial of last minute request for substitution of counsel did not deny petitioner's Sixth Amendment right to counsel where "[t]he trial court . . . determined that defense counsel had performed 'quality work' up to that point, and that substitution of counsel would cause undue delay."); Edwards v. Fischer, 2002 WL 1225538 at *8 ("The motions made by petitioner's counsel and his representation at trial evidence his familiarity with petitioner's case and his zealous advocacy of petitioner's interests, belying petitioner's allegations of deficient representation on the eve of trial."); Byas v. Keane, 1999 WL 608787 at *9-10 ("Petitioner met with his assigned counsel before trial on at least two occasions. . . . As the record of the Wade hearing and trial indicates, counsel was entirely familiar with the facts and principles of the case such that he was able to file pre-trial motions, conduct cross-examination of witnesses and provide a cogent defense. . . . Petitioner's request alone may not substitute for good cause."); People v.Garcia, 250 A.D.2d at 421, 673 N.Y.S.2d at 92 ("[S]ince the court's own observations of counsel's conduct during the pretrial proceedings convincingly undercut defendant's assertions, the court correctly concluded that defendant's request for new counsel was a delaying tactic.").

Finally, under New York law, conclusory claims that counsel failed to adequately communicate with the defendant are insufficient to establish "good cause" for substitution of counsel. See, e.g., People v. Robinson, 285 A.D.2d 478, 478, 723 N.Y.S.2d 482, 483 (2d Dep't) ("The defendant's complaints about his assigned counsel consisted of conclusory allegations which were insufficient to show good cause, and his actions were merely a dilatory tactic."), appeal denied, 96 N.Y.2d 923, 732 N.Y.S.2d 641 (2001); People v. Estwick, 266 A.D.2d at 123-24, 698 N.Y.S.2d at 668 (upholding trial court's denial of substitution of counsel where "defendant's complaints about his counsel consisted of conclusory allegations of inadequate communication"); People v. Square, 262 A.D.2d 154, 154, 692 N.Y.S.2d 321, 322 (1st Dep't), appeal denied, 94 N.Y.2d 829, 702 N.Y.S.2d 600 (1999); People v. Merritt, 260 A.D.2d 319, 319,689 N.Y.S.2d 84,84 (1st Dep't) ("The court properly exercised its discretion in denying defendant's requests for assignment of new counsel, made shortly before and during the Mapp hearing and trial, since defendant did not establish good cause for such substitution. Defendant's unjustified hostility toward, and refusal to communicate with, his counsel did not constitute good cause."), appeal denied, 93 N.Y.2d 1023,697 N.Y.S.2d 582 (1999); People v. Rowe, 258 A.D.2d 378, 379, 685 N.Y.S.2d 688, 688 (1st Dep't) ("Defendant's request for new assigned counsel, made for the first time at the end of jury selection, was properly denied, since defendant failed to establish good cause for such substitution. . . . Defendant's unjustified lack of confidence in, and refusal to communicate with, his assigned counsel did not warrant substitution."), appeal denied, 93 N.Y.2d 902, 689 N.Y.S.2d 714 (1999); People v. Garcia, 250 A.D.2d at 421, 673 N.Y.S.2d at 92 ("Defendant's general complaints of dissatisfaction with his counsel were insufficient to establish the existence of a breakdown in communication or a serious irreconcilable conflict.").

Both in his coram nobis petition and his current federal habeas petition, Guzman's current counsel argues that the trial judge did not allow Guzman to finish cataloging his dissatisfaction with trial counsel. (E.g., Dkt. No. 2: Guzman Br. at 6, 11; Ex. F: Guzman 5/19/02 Coram Nobis Br. at 2.) Notably absent from the coram nobis petition (and absent here as well) was any affidavit from Guzman describing what, if any, other complaints he had against trial counsel. Indeed, on direct appeal, appellate counsel would have been limited by the hearing record; any additional information from Guzman would have required a C.P.L. § 440 motion which appointed appellate counsel is not required to bring. Thus, with an appeal devoid of any complaints about trial counsel except an eve of trial conclusory complaint that counsel had not conferred with Guzman enough, it is not surprising that appellate counsel made the strategic decision not to claim on appeal that the trial judge abused his discretion.

Particularly under the deferential AEDPA review standard, this Court cannot say that the First Department's denial of Guzman's ineffective assistance of appellate counsel claim was an unreasonable application of the Strickland v. Washington standard.

II. GUZMAN'S SUFFICIENCY OF THE EVIDENCE CLAIM SHOULD BE DENIED

A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims ³³

33 For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation, see Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *8-12 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Hediam v. Miller, 02 Civ. 1419, 2002 WL 31867722 at *11-14 (S.D.N.Y. Dec. 23, 2002) (Peck, M.J.); Gutierrez v.Ricks, 02 Civ. 3780, 2002 WL 31360417 at *7-10 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.); Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *4-5 (S.D.N.Y. July 9, 2002) (Peck, M.J.);Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002); Simpson v.Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v.Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v.Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v.Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.);Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

"'[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction 'except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'"Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt."Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.³⁴

34 Accord, e.g. Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v.Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).

Petitioner Guzman bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).³⁵

35 Accord, e.g. Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v.Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a 'heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a 'very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor.") (citations omitted), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996);United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question 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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).³⁶

36 Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16;United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)); Mallette v.Scully, 752 F.2d 26, 31 (2d Cir. 1984).

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

B. The Evidence Was Legally Sufficient to Support Guzman's Robbery Conviction

Guzman was convicted of first degree robbery. (See page 9 above.) Robbery is defined as follows:

Robbery is forcible stealing. A person forcibly steals property and commits robbery when, in the course of committing a larceny, he uses or threatens the immediate use of physical force upon another person for the purpose of:

1. Preventing or overcoming resistance to the taking of the property or to the retention thereof immediately after the taking; or

2. Compelling the owner of such property or another person to deliver up the property or to engage in other conduct which aids in the commission of the larceny.

Penal Law § 160.00.

Larceny, in turn, is defined as follows: "A person steals property and commits larceny when, with intent to deprive another of property or to appropriate the same to himself or to a third person, he wrongfully takes, obtains or withholds such property from an owner thereof." Penal Law § 155.05(1). "[T]he terms 'deprive' and 'appropriate' imply an intent on the part of the accused to exercise permanent or extended control over the property." Franco v. Walsh, 00 Civ. 8930, 2002 WL 596355 at *4 (S.D.N.Y. Apr. 17, 2002) (citing People v. Jennings, 69 N.Y.2d 103, 118, 512 N.Y.S.2d 652, 659 (1986) (quoting Penal Law § 155.00)).

Guzman argues³⁷ that he did not have the requisite intent to meet "'[t]he mens rea element of larceny . . . [which] is simply not satisfied by an intent temporarily to use property without the owner's permission, or even an intent to appropriate outright the bene[fi]ts of the property's short-term use.'" (Dkt. No. 2: Guzman Br. at 15) (quoting People v. Jennings, 69 N.Y.2d at 119, 512 N.Y.S.2d at 660.) Guzman specifically argues:

37 While Guzman's point heading states that "the verdict was against the weight of the evidence" (Guzman Br. at 13), Guzman effectively is arguing that his conviction was not supported by sufficient evidence. (See id. at 13-14, citing leading insufficiency of the evidence cases Jackson v. Virginia, 443 U.S. 307,99 S.Ct. 2781 (1979), United States v. Rosa, 11 F.3d 315 (2d Cir. 1993).) In any event, while sufficiency of the evidence claims are cognizable on habeas review, weight of the evidence claims are not so cognizable. See, e.g., Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *8 (S.D.N.Y. May 7, 2003) (Peck, M.J.) (collecting cases).

Here, while the evidence may have been sufficient to prove that [Guzman] had taken the garage door device, identification card and jacket from Pierre, it could not support the theory that he intended to permanently deprive Pierre of those items, or appropriate them for himself. It is obvious from the testimony given by the prosecution witnesses that the garage door opening device had no intrinsic value and that its only use was to enable the holder to gain access to the garage to facilitate the taking of property that did have value, automobiles. And of course, the fact that the garage door device was abandoned inside the garage before [Guzman] ran into the street provided further evidence that there was no intent to permanently deprive Pierre of its use.

It is equally obvious that the taking of the employee identification card and employee jacket did not evince an intention to permanently deprive Pierre of those items, or appropriate them for himself. These items were clearly taken for the limited purpose of facilitating [Guzman]'s escape. As such, no rational trier of fact could conclude that the temporary taking of those items demonstrated a felonious intent to appropriate that property.

(Guzman Br. at 15-16.)

The First Department concluded that "[t]he requisite larcenous intent [could] be reasonably inferred from the evidence."People v. Guzman, 277 A.D.2d 153, 154, 716 N.Y.S.2d 304, 304 (1st Dep't 2000). This Court agrees.

The jury could reasonably have concluded that Guzman intended to keep the remote control, Pierre's employee identification card and jacket in order to facilitate future car thefts by allowing him to pose as a garage attendant. Further, the jury could have inferred, from removal of Pierre's picture from the identification card, that Guzman intended to substitute his own picture at a later date and use the card in subsequent garage robberies. A reasonable jury could have concluded that the fact that Guzman discarded the identification card and remote control (and his gun) merely indicates that he abandoned them when the police arrived, which does not negate his original intent.See, e.g., In re Yiell C., 253 A.D.2d 718, 719, 679 N.Y.S.2d 364, 364 (1st Dep't 1998) ("Appellant's intent to appropriate the beeper from the complainant was adequately demonstrated by his stated demand that the complainant turn it over, a demand lacking any non-larcenous explanation. Defendant's conduct in abandoning the beeper was not inconsistent with the original larcenous intent."); see also cases cited in the next paragraph. Finally, Guzman was still wearing the employee jacket when he ran from the garage attempting to escape capture. Even if Guzman were planning never to wear the jacket again, the jury could reasonably infer that Guzman did not intend to return the jacket to Pierre once he had escaped.

Guzman's taking of the items from Pierre at gunpoint and his subsequent actions provide sufficient circumstantial evidence from which a reasonable jury could conclude that Guzman intended to permanently deprive Pierre of the items. See, e.g., Franco v. Walsh, 2002 WL 596355 at *4-5 (denying habeas claim of insufficient evidence in first degree robbery case in which petitioner contended there was no evidence he planned to possess jacket permanently: "[A witness] testified that the petitioner had admitted refusing to return the jacket to [the victim] and ordering him to leave without it. When the victim continued to demand the jacket, [the petitioner] hit him with a beer bottle. From this evidence the jury was surely entitled to infer the petitioner's intent to keep the jacket.") (citing In re Yiell C., 253 A.D.2d at 719, 679 N.Y.S.2d at 364, People v. Smith, 140 A.D.2d 259, 261, 528 N.Y.S.2d 562, 564 (1st Dep't) ("Whether the subsequent return of the [cosmetics] case negates a finding of intent 'to deprive' or 'to appropriate' the property is a question of fact for the petit jury."), appeal denied, 72 N.Y.2d 924, 532 N.Y.S.2d 858 (1988).)³⁸

38 See also, e.g., In re James M., 282 A.D.2d 396, 396,723 N.Y.S.2d 668,668 (1st Dep't 2001) ("Appellant's larcenous intent was clearly established by his demands, while holding a knife, that the victims surrender items of property, since there was no credible non-larcenous explanation for appellant's conduct."); People v. Pogo, 281 A.D.2d 208, 208-09, 722 N.Y.S.2d 7, 8 (1st Dep't) ("The evidence was sufficient to establish defendant's guilt of both counts of robbery. Defendant's intent to appropriate one complainant's ring 'was adequately demonstrated by his stated demand [at gun point] that the complainant turn it over, a demand lacking any non-larcenous explanation.' The fact that defendant returned the ring at the complainant's request, after his accomplice had successfully taken the other complainant's money, is not inconsistent with his original larcenous intent. The jury could have reasonably concluded that defendant returned the ring, not because of an original lack of intent to steal the ring, but because of his satisfaction with the amount of money obtained by the accomplice.") (citations omitted), appeal denied, 96 N.Y.2d 833, 729 N.Y.S.2d 454 (2001).

Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254(d). For a discussion of the AEDPA review standard and its applicability to sufficiency of the evidence cases, see, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 n. 10, *15 n. 24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) ( cases cited therein). This Court cannot say that the First Department's decision affirming Guzman's conviction of first degree robbery was contrary to or an unreasonable application of established federal law or was based on an unreasonable determination of facts.

III. GUZMAN'S EXCESSIVE SENTENCE CLAIM DOES NOT PROVIDE A BASIS FOR FEDERAL HABEAS RELIEF

Guzman claims that his sentence was excessive and deprived him of his right to due process because "no physical injury was inflicted," "the items of property were not taken with the intention of permanently depriving the owner of those items," and "the prosecutor's pre-trial plea offer [of eight years] reflected a far better assessment of [Guzman]'s culpability and background than did the sentence ultimately imposed by the presiding judge." (Dkt. No. 2: Guzman Br. at 17, 19.)

Guzman's excessive sentence claim does not provide a basis for federal habeas relief, because "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992).³⁹

39 Accord, e.g. Briggs v. Phillips, 02 Civ. 9340, 2003 WL 21497514 at *7 (S.D.N.Y. June 30, 2003) (Peck, M.J.);Wilson v. Senkowski, 02 Civ. 0231, 2003 WL 21031975 at *13 (S.D.N.Y. May 7, 2003) (Peck, M.J.); Naranio v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *13 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Alfini v. Lord, No. 99-CV-8015, 2003 WL 442267 at *7-8 (E.D.N.Y. Feb. 25, 2003); Reynolds v. Artuz, 97 Civ. 3175, 2003 WL 168657 at *4 (S.D.N.Y. Jan. 23, 2003); Pressley v. Bennett, 235 F. Supp.2d 349, 368 (S.D.N.Y. 2003);Ferguson v. Walker, 00 Civ. 1356, 2002 WL 31246533 at *10 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J. Peck, M.J.); Schreter v. Artuz, 225 F. Supp.2d 249, 258 (E.D.N.Y. 2002); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *6 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Solomon v. Artuz, 00 Civ. 0860, 2000 WL 863056 at *7 (S.D.N.Y. June 28, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *13 (S.D.N.Y. May 16, 2000) (Peck, M.J.); Thomas v. Greiner, 111 F. Supp.2d 271, 278 n. 8 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.);Thomas v. Senkowski, 968 F. Supp. 953, 956 (S.D.N.Y. 1997) ("It is well established that, when a sentence falls within the range prescribed by state law, the length of the sentence may not be raised as grounds for federal habeas relief."); see also, e.g., Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255 (1948) (severity of sentence generally not reviewable on habeas); DeFeo v. Artuz, 958 F. Supp. 104, 109 (E.D.N.Y. 1997); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y. 1996); Haynes v. Lacey, Civ. A. No. 93-CV-2294, 1995 WL 500474 at *4 (E.D.N.Y. Aug. 8, 1995); Underwood v.Kelly, 692 F. Supp. 146, 152 (E.D.N.Y. 1988), aff'd, 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837, 110 S.Ct. 117 (1989); Diaz v. LeFevre, 688 F. Supp. 945,949 (S.D.N.Y. 1988); Castro v. Sullivan, 662 F. Supp. 745,753 (S.D.N.Y. 1987) (citing earlier cases); Rivera v. Quick, 571 F. Supp. 1247, 1249 (S.D.N.Y. 1983).

Guzman was convicted and sentenced for first degree robbery and second degree criminal possession of a weapon, as a second violent felony offender under Penal Law § 70.04(1). (S. 3-4, 11.)

Penal Law § 70.04 provides:

2. Authorized sentence. When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a second violent felony offender the court must impose a determinate sentence of imprisonment which shall be in whole or half years. . . . [T]he term of such sentence must be in accordance with the provisions of subdivision three of this section.

3. Term of sentence. The term of a determinate sentence for a second violent felony offender must be fixed by the court as follows:

(a) For a class B felony, the term must be at least ten years and must not exceed twenty-five years;

(b) For a class C felony, the term must be at least seven years and must not exceed fifteen years; and

(c) For a class D felony, the term must be at least five years and must not exceed seven years.

(d) For a class E felony, the term must be at least three years and must not exceed four years.

Penal Law §§ 70.04(2)-(3).

First degree robbery is a class B felony. Penal Law § 160.15. As a second violent felony offender, Guzman could have been sentenced to a determinate sentence of between ten and twenty-five years, and thus his sentence of fifteen years is within the range prescribed by state law. Second degree criminal possession of a weapon is a class C felony. Penal Law § 265.03. Guzman's determinate sentence often years was also within the statutory range (of between seven and fifteen years) for this offense.

As Guzman's actual sentence is within the statutory sentencing range, it is not reviewable by this Court. See, e.g., Priester v. Strack, 98 Civ. 7960, 2001 WL 980563 at *7 (S.D.N.Y. Aug. 23, 2001) ("Since the sentence imposed is within the range prescribed by state law [for a second violent felony offender], the Court finds that no federal constitutional issue is presented by this claim."); Herrera v. Artuz, 171 F. Supp.2d 146, 148, 151 (S.D.N.Y. 2001); Ayala v. Stinson, No. 98-CV-378, 1999 WL 299308 at *1, 3-4 (W.D.N.Y. Mar. 22, 1999) (petitioner not entitled to habeas relief on the ground of excessive sentence where sentence was "within the range prescribed by New York law for a second felony offender convicted of a class B felony."); Horn v. Smith, No. 94 CV 2781, 1997 WL 391461 at * 1-2 (E.D.N.Y. July 7, 1997) (petitioner's sentence for robbery and other offenses was not excessive: "Petitioner's sentence is clearly within the maximum allowed by New York law and therefore will not be disturbed.");Vanterpool v. Kirk, No. CV-90-0813, 1990 WL 127644 at *1-2 (E.D.N.Y. Aug. 22, 1990) (sentence as second violent felony offender not excessive where "the sentence imposed was within the statutory guidelines established by the New York State legislature."); Allah v. Kelly, No. 89 C 2926, 1990 WL 100288 at *1, 3 (E.D.N.Y. June 25, 1990) (petitioner's sentence for robbery, as a second violent felony offender, not excessive as it "was within the statutory limits, and was not so severe as to deny petitioner any constitutional right."); Robinson v.Riely, No. 88 C 3557, 1989 WL 56047 at *1-2 (E.D.N.Y. May 18, 1989) (petitioner's sentence as a second violent felony offender not excessive since it was within the range he lawfully could have received); Vega v. Scully, 86 Civ. 4153, 1986 WL 13460 at *1, 4 (S.D.N.Y. Nov. 17, 1986) (petitioner's sentence for Class B felony as a second violent felony offender not cognizable under federal habeas statute as it "does not exceed the twenty-five year limit imposed by [Penal Law] § 70.04(3)(a)).").

CONCLUSION

For the reasons set forth above, Guzman's habeas petition should be denied and a certificate of appealability should not issue.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Whitman Knapp, 40 Center Street, Room 1201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Knapp. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).