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retaining jurisdiction despite petitioner's filing of an interlocutory appeal to the Second Circuit, because "there did not appear to be any basis for the Second Circuit to hear [petitioner's appeal at this time, and, especially given the age of this habeas proceeding, no goals of efficiency would be served by any further delays"
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06 Civ. 00188 (PKC) (DF)
07-19-2011
TYRONE JACKSON, Petitioner, v. THOMAS POOLE, SUPERINTENDENT OF FIVE OAK CORRECTIONAL FACILITY, Respondent.
REPORT AND RECOMMENDATION
TO THE HONORABLE P. KEVIN CASTEL, U.S.D.J.:
Pro se petitioner Tyrone Jackson ("Petitioner") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254, following his state conviction, upon a jury verdict, of Robbery in the Second Degree, in violation of N.Y. Penal Law § 160.10(2)(a). (See Petition Under 28 U.S.C. § 2254 For Writ of Habeas Corpus by a Person in State Custody, dated Aug. 17, 2005 ("Pet.") (Dkt. 2); Affidavit in Support of Supplemental Petition, sworn to Dec. 17, 2008 ("Supp. Pet.") (Dkt. 11).) Petitioner was sentenced as a persistent violent felony offender to a term of 16 years to life imprisonment (Pet., at ¶ 4), and is currently incarcerated at the Sing Sing Correctional Facility.
The Court has deemed Petitioner's "Affidavit in Support of Supplemental Petition" (Dkt. 11) to be a supplemental pleading, based on Petitioner's confirmation that this was his intent (see Dkts. 16, 18).
For the reasons discussed below, I recommend that Petitioner's claims be dismissed.
FACTUAL BACKGROUND
Based on the evidence presented by the prosecution at trial, on January 20, 2003, at approximately 9:00 p.m., Petitioner followed Maria Rodriguez ("Rodriguez") and her two sons, aged 15 and 16, onto a downtown "A" subway train at the 34th Street station in Manhattan. (Trial Transcript, dated Dec. 9-15, 2003 (Dkt. 74) ("Trial Tr."), at 80-81, 87-88.) Rodriguez was carrying two large bags. (Id. at 85, 92-93.) Petitioner approached Rodriguez and her sons on the train, and began "poking" at them with an object he was holding. (Id. at 80-81, 92.) Rodriguez testified that she did not understand why Petitioner was "poking" at her and her sons, and she concluded that Petitioner may have been drunk. (Id. at 92.)
As Rodriguez and her sons exited the car at the Canal Street station in Manhattan, Petitioner grabbed the two bags that Rodriguez was carrying. (Id. at 82.) Rodriguez struggled to keep the bags, until Petitioner hit Rodriguez twice in the head. (Id.) Rodriguez released the bags, and Petitioner fled up the stairs and onto the street. (Id.)
Rodriguez and her two sons enlisted the assistance of two bystanders, Orin Caby ("Caby") and Israel Fernandez ("Fernandez"), and pursued Petitioner up the stairs. (Id. at 34.) At street level, Rodriguez and one of her sons identified Petitioner to Caby and Fernandez, as Petitioner ran across Canal Street. (Id. at 64-65, 82-83, 94.) Caby and Fernandez, followed by Rodriguez and her two sons, pursued and caught up with Petitioner, approximately one block from the subway station. (Id. at 60-67.) When Caby and Fernandez attempted to take back Rodriguez's bags, Petitioner resisted. (Id. at 65-66, 70-71.) In response, Caby and Fernandez punched Petitioner and eventually pinned him to the ground. (Id.)
Police Officer Steven Soldano, who was headed westbound on Church Street in a police van, observed Petitioner behind the police van, being chased north across Church Street by two men, a woman, and two children. (Id. at 14-19.) Officer Soldano turned the van around and then saw Petitioner being held to the ground by Caby and Fernandez, with Rodriguez and her sons standing nearby. (Id. at 16-17.) Officer Soldano interviewed Rodriguez, Caby, and Fernandez, and then arrested Petitioner. (Id. at 20-23.)
PROCEDURAL HISTORY
A. State Court Proceedings
This case has a lengthy procedural history in the state courts, as Petitioner not only filed a direct appeal from his conviction, but also filed a number of motions in the trial and appellate courts and commenced many collateral proceedings, raising a wide variety of claims. These various direct and collateral challenges to Petitioner's conviction are aptly summarized by Respondent in the first 29 pages of his brief in opposition to the Petition (see Memorandum of Law in Opposition to the Petition for a Writ of Habeas Corpus, dated Feb. 12, 2010 ("Resp. Mem.") (Dkt. 34)), and will be addressed by this Court below, only to the extent necessary to consider the particular claims being raised in this proceeding.
B. Federal Proceedings
Petitioner commenced his federal habeas action by filing a Petition in this Court in 2005, but that Petition was dismissed by the Court (Mukasey, C.J.) in January 2006, for apparent lack of exhaustion of state remedies. (Dkt. 3.) After an unsuccessful appeal to the Second Circuit (Dkt. 8), Petitioner moved in August 2008 to vacate the judgment of dismissal and to reopen the action in this Court, on the ground that he had, by then, exhausted his claims. (Dkt. 9.) In addition, Petitioner sought to add additional claims that he had also purportedly exhausted by the date of his motion. (See id.) By Order dated October 29, 2008, the Court (Baer, J.) granted Petitioner's motion, vacating the judgment and reopening the action. (Dkt. 10.) By that same Order, the Court directed Petitioner to file a Supplemental Petition to add the new claims that Petitioner had sought leave to plead. (Id.)
Although the Court's docket reflects a filing date of January 11, 2006, a pro se prisoner's papers are deemed filed when they are handed over to prison officials for forwarding to the court, see Houston v. Lack, 487 U.S. 266, 270 (1988), and this Court will therefore deem the Petition to have been filed on August 17, 2005, the date when Petitioner declared under penalty of perjury that he delivered the petition to prison authorities to be mailed to the Court, see, e.g., Rhodes v. Senkowski, 82 F. Supp. 2d 160, 165 (S.D.N.Y. 2000).
On December 17, 2008, Petitioner filed an affidavit and supporting materials (Dkt. 11) that, taken together, this Court construed as his Supplemental Petition (see n.1, supra). Given the length of Petitioner's initial and supplemental filings, and the extent of the state court proceedings that were variously referred to therein, Respondent moved, on July 10, 2009, to compel Petitioner to file a more definite statement of his claims. (Dkt. 24.) This Court denied that motion by Order dated October 21, 2009 (Dkt. 28), finding that the scope of Petitioner's habeas claims was reasonably discernable from his pleadings (see id.). In its October 21 Order, the Court outlined the six claims that it understood Petitioner to be asserting in this habeas proceeding, and directed Respondent to respond to those six enumerated claims. (Id.) The Court summarized those claims as follows:
(1) that the Appellate Division violated Petitioner's Sixth Amendment right to the effective assistance of appellate counsel by denying Petitioner's application for the reassignment of appellate counsel (see Supp. Pet., at ¶¶ 4-11; Pet., at Exs. C, E)), and by proceeding to decide Petitioner's appeal without first replacing his counsel (see Supp. Pet., at ¶¶ 12-13);
(2) that the Appellate Division violated Petitioner's Sixth Amendment right to the effective assistance of counsel, as well as his Fifth Amendment right against self-incrimination, by (a) denying Petitioner's applications to strike the brief filed by his appellate counsel, and (b) dismissing an Article 78 proceeding filed by Petitioner, seeking to compel his appellate counsel to withdraw that brief (see id., at ¶¶ 14-18);
(3) that Petitioner's due process rights were violated by the Appellate Division's determination of his direct appeal without the benefit of a full record of the pre-trial proceedings, a record Petitioner purportedly asked the
appellate court to obtain; and that Petitioner's Sixth Amendment right to the effective assistance of counsel was violated by his counsel's failure to arrange for the transcription of the full pre-trial record and present it to the Appellate Division, despite Petitioner's numerous requests that counsel do so (see id., at ¶¶ 19-24);(Id.) With respect to the fourth claim, the Court noted that, "[t]o the extent Respondent suggests that, in his federal habeas petition, Petitioner has not identified the specific issues that his appellate counsel allegedly failed to raise on direct appeal, it is the Court's understanding that Petitioner is referring to the same issues that he raised in his state coram nobis petition." (Dkt. 28, at 4 n.2.)
(4) that, by failing to raise many purportedly meritorious issues on appeal, Petitioner's appellate counsel failed to provide Petitioner with effective assistance (see id., at ¶¶ 25-38);
(5) that Petitioner was deprived of his Sixth Amendment right to the effective assistance of trial counsel, when his trial counsel (a) failed to secure Petitioner an opportunity to testify before the grand jury that eventually returned an indictment against him, and then (b) failed to move to dismiss the indictment as defective (see id., at ¶¶ 39-64), and;
(6) that (a) Petitioner's trial and conviction represented a denial of due process because, as a result of the allegedly defective indictment, the state court lacked subject matter jurisdiction to try the case, and (b) Petitioner's trial counsel was ineffective for failing to file an appropriate motion challenging the trial court's jurisdiction (see id., at ¶¶ 65-76).
Although Petitioner initially expressed agreement with the Court's summary of his habeas claims (see, e.g., Dkt. 27), he later informed the Court that he had intended to include unexhausted issues that he had not raised in his first coram nobis petition, and requested a stay of these proceedings while he exhausted those claims in a second petition for a writ of error coram nobis (Dkt. 42). The Court denied Petitioner's request for a stay (Dkt. 46) and, as explained in more detail below (see infra at 8-10), Petitioner ultimately withdrew those unexhausted claims (Dkt. 56).
On February 26, 2010, Respondent filed an opposition to the Petition and Supplemental Petition, together with copies of a number of state-court filings and transcripts. (See Dkts. 33-36.) In his opposition, Respondent argued that each of the above-described claims should be dismissed, either on procedural grounds or on the merits. (See generally Resp. Mem.)
Exhibits attached to the Declaration Supporting Opposition to the Petition for a Writ of Habeas Corpus, dated Feb. 12, 2010 (Dkt. 33) are referred to herein by exhibit number.
Petitioner, however, did not promptly file a reply. Rather, subsequent to Respondent's filing of opposition papers, Petitioner made over 20 separate submissions to the Court, seeking, inter alia, to strike Respondent's opposition, to expand the record, to stay these proceedings so as to allow him to exhaust additional claims, and to amend the pleadings to add new claims. (See, e.g., Dkts. 37, 39, 40, 41, 42, 43, 45, 47-59, 64, 65, 71.) Petitioner also moved for the appointment of counsel, for an evidentiary hearing, and for this Court's recusal. (See Dkts. 49, 52, 56, 57, 58, 59.) For the most part, this Court denied Petitioner's various applications (see Dkts. 37, 39, 40, 41, 46, 60, 67, 71), although the Court did grant Petitioner's request to expand the record to include a pre-trial transcript and a pre-trial order by the trial court that Petitioner belatedly obtained and also granted Petitioner's requests for extensions of time to file a reply, despite the fact that he had substantially missed the Court's deadline for reply papers (see Dkt. 60, 67, 69).
In May 2011, Petitioner filed an interlocutory appeal to the Second Circuit, challenging this Court's denial of his requests for the appointment of counsel, to expand the record, to stay these proceedings to exhaust additional claims, and to amend to add new claims. (Dkt. 68.) On May 5, 2011, this Court held that, although, as a general matter, the filing of a notice of appeal confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal, see Unites States v. Rodgers, 101 F.3d 247, 251 (2d Cir. 1996), in this instance, as there did not appear to be any basis for the Second Circuit to hear Petitioner's appeal at this time, see 28 U.S.C. § 1292, and, especially given the age of this habeas proceeding, no goals of efficiency would be served by any further delays and, thus, the Court would retain jurisdiction over this matter while Petitioner's interlocutory appeal was pending. (Dkt. 69.)
A similar appeal of this Court's prior orders is also pending before the Honorable P. Kevin Castel.
Petitioner finally filed his reply on June 2, 2011. (Memorandum of Law in Reply to the Respondent's Memorandum of Law in Opposition to the Petitions for a Writ of Habeas, dated June 2, 2011 (Dkt. 72) ("Pet. Reply").)
To the extent that Petitioner, in his reply, seeks to insert additional claims into this habeas proceeding, beyond those set forth in the Court's October 21, 2009 Order, and requests any additional relief, including expanding the record, staying these proceedings, holding an evidentiary hearing, and reconsideration of the Court's prior rulings, those requests are denied for the reasons set forth in this Court's prior orders. (See Dkts. 37, 39, 40, 41, 46, 60, 67, 71.) In his 76-page reply, Petitioner also requests additional time to respond to the arguments made by Respondent in the opposition, as Petitioner claims that he has not had sufficient time because he was preparing the other motions, applications, and appeals described above. (See Pet. Reply, at 75-76.) This request is also denied, as this Court has afforded Petitioner ample time and opportunity to respond to Respondent's opposition. In any event, Petitioner will have an opportunity to raise to Judge Castel any objections that he has to this Report and Recommendation.
DISCUSSION
I. APPLICABLE LEGAL STANDARDS
A. Statute of Limitations
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a habeas petition must be filed within a one-year limitations period beginning on the latest of four dates, usually "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A) (2000); see also Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001) (citations omitted) (judgment becomes "final" for purposes of Section 2244 upon "the completion of direct appellate review in the state court system and either the completion of certiorari proceedings in the United States Supreme Court, or - if the prisoner elects not to file a petition for certiorari - [the expiration of] the time to seek direct review via certiorari"). In this case, as Respondent concedes, Petitioner's claims are timely because his Supplemental Petition was filed within one year of the date Petitioner's conviction became final for purposes of habeas review. See 28 U.S.C. § 2244(d)(1)(A).
B. Exhaustion
A federal court may not consider a petition for a writ of habeas corpus unless the petitioner has exhausted all state judicial remedies. 28 U.S.C. § 2254(b)(1)(A); see also Picard v. Connor, 404 U.S. 270, 275 (1971); Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997). To satisfy the exhaustion requirement, a habeas petitioner must have "fairly presented" his claims to the state courts, thereby affording those courts the "'opportunity to pass upon and correct' alleged violations of . . . prisoners' federal rights." Picard, 404 U.S. at 275 (citing Wilwording v. Swenson, 404 U.S. 249, 250 (1971)). There are several ways by which a petitioner can fairly present a federal claim to the state appellate court, including by citing the relevant provisions of the federal Constitution in his appellate brief. See Davis v. Strack, 270 F.3d 111 (2d Cir. 2001). Once the state courts are appraised of the constitutional nature of a petitioner's claims, the exhaustion requirement is fulfilled when those claims have been presented to "the highest court of the pertinent state." Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) (internal quotation marks and citation omitted).
Here, as explained above, when this Court denied Respondent's motion for a more definite statement, the Court set out its understanding of, inter alia, the ineffective assistance of appellate counsel claims that Petitioner was seeking to raise in this proceeding, construing those claims to be the same claims that Petitioner had exhausted through a state coram nobis proceeding. (Dkt. 28.) Only after Respondent filed his opposition to the Petition and Supplemental Petition, did Petitioner inform the Court that its understanding was incorrect, and that he had intended to raise, in this Court, certain additional ineffective assistance claims that he had not raised in his prior coram nobis petition. (Dkt. 42.) Petitioner requested that the Court stay and hold these habeas proceedings in abeyance while he exhausted those claims. (Id.) The Court denied Petitioner's motion for a stay, finding that Petitioner had failed to show "good cause" for his failure to exhaust these additional claims. (See Dkt. 46 (citing Rhines v. Weber, 544 U.S. 269 (2005).) The Court further directed Petitioner to inform the Court as to whether he wished to delete the unexhausted claims from his Petition and Supplemental Petition, rather than face the dismissal of the entire action as based on a "mixed petition." (Id.) In response, Petitioner represented that, under those circumstances, he would prefer to withdraw his unexhausted claims. (See Dkt. 56 (letter to the Court from Petitioner, dated June 7, 2010, confirming that Petitioner would delete the unexhausted claims).) Accordingly, as any of Petitioner's habeas claims that were not exhausted at the time he filed the Supplemental Petition have been voluntarily excised by Petitioner, the Court now construes Petitioner's pleadings to contain only those claims that have been fully exhausted.
A petition is considered a "mixed petition" when it contains both exhausted and unexhausted claims. See Rhines, 544 U.S. at 271. When ruling on a mixed petition, the Court may dismiss the entire petition, or, in its discretion, may stay the proceedings and hold the petition in abeyance, so as to permit the petitioner to return to the state courts to exhaust any unexhausted claims, assuming an avenue for exhaustion is still available. See id. at 277-78. If, however, the petitioner has not shown good cause for his failure to exhaust any unexhausted claims, or if those claims are plainly meritless, then the issuance of a stay would be an abuse of the Court's discretion. See id. at 277. Where a court "determines that stay and abeyance is inappropriate, the court should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims if dismissal of the entire petition would unreasonably impair the petitioner's right to obtain federal relief." Id. at 278. This is what the Court permitted here.
C. Standard of Review
Where a federal constitutional claim has been adjudicated on the merits by the state court, this Court must accord substantial deference to the state court's decision under the standard of review dictated by AEDPA. See 28 U.S.C. § 2254(d); see also Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (noting that "adjudicated on the merits" means "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground"). The relevant section of AEDPA provides that:
[a]n 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) 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). In addition, under AEDPA, where not manifestly unreasonable, a state court's factual findings are presumed correct, and can only be overcome by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
Under AEDPA, a state court decision is "contrary to" clearly established federal law where the state court either applies a rule that "contradicts the governing law" set forth in Supreme Court precedent or "confronts a set of facts that are materially indistinguishable from a [Supreme Court] decision" and arrives at a different result. Williams, 529 U.S. 362, 405-06 (2000). An "unreasonable application" of clearly established federal law occurs when the state court identifies the correct governing legal principle, but unreasonably applies that principle to "a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. 63, 73-76 (2003). The state court's decision, however, "must have been more than incorrect or erroneous" - rather, "[t]he state court's application must have been 'objectively unreasonable.'" Wiggins v. Smith, 539 U.S. 510, 520-21 (2003) (quoting Williams, 529 U.S. at 409). In other words, the state court's ruling must have been "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).
The Supreme Court has emphasized that "clearly established [f]ederal law" refers only to the "'holdings, as opposed to the dicta, [of the Supreme Court's] decisions as of the time of the relevant state-court decision.'" Carey v. Musladin, 549 U.S. 70, 74 (2006) (quoting Williams, 529 U.S. at 412); see also Rodriguez v. Miller, 537 F.3d 102, 107 (2d Cir. 2007) ("Musladin admonishes courts to read the Supreme Court's holdings narrowly and to disregard as dicta for habeas purposes."). Thus, a principle of constitutional law "grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court" cannot provide the basis for habeas relief. Rodriguez, 537 F.3d at 106-07 (citing Musladin).
Where the state court has not reached the merits of a petitioner's claim, then this Court will consider the claim under a de novo standard of review.
II. PETITIONER'S CLAIMS
As noted above, Petitioner asserts a number of claims in this action. Most of his claims are grounded in the Sixth Amendment, in that they relate to the adequacy of the representation he received from counsel - to some extent, on the trial level, and, most significantly, before the Appellate Division. In addition, Petitioner raises one claim suggesting a violation of his Fifth Amendment right against self-incrimination. Finally, he raises certain claims that are best characterized as due process claims, challenging the constitutional adequacy of his trial and appellate proceedings. Taken in this order, these claims are addressed in turn, below.
A. Ineffective Assistance of Trial Counsel
Petitioner claims that his trial counsel's performance was ineffective, in that counsel failed to secure him the opportunity to testify before the grand jury. (See Supp. Pet., at ¶¶ 39-64.) Additionally, although Petitioner concedes that his counsel moved to dismiss the indictment, pursuant to Sections 190.50 and 210.20 of the New York Criminal Procedure Law, based on the prosecution's failure to provide Petitioner with a reasonable opportunity to testify on his own behalf before the grand jury, Petitioner maintains that his trial counsel's performance was ineffective for failing (a) to move to dismiss the indictment "in the interest of justice," pursuant to Section 210.40 of the New York Criminal Procedure Law, and (b) to challenge the trial court's jurisdiction to try the case in light of the allegedly defective indictment. (See id., at ¶¶ 65-76.)
The facts underlying Petitioner's indictment by a grand jury are largely undisputed. At Petitioner's arraignment on January 22, 2003, Petitioner served a written cross-notice of his intent to testify before the grand jury, and the case was adjourned to January 27 for presentation to the grand jury. (Supp. Pet., Ex. D, at 4.) On January 23, the prosecutor - having realized that the deadline for indictment under state law was January 24 - called Petitioner's counsel and informed her that the case would be presented to the grand jury on the morning of January 24. (Id. at 3-4.) Petitioner's counsel responded that she "would speak to [Petitioner] first thing [the next] morning to determine if he still wished to testify on his own behalf before the Grand Jury," but that she was not withdrawing the cross-notice to testify. (Supp. Pet., Ex. B, ¶¶ 4-5.) On January 24, at approximately 11:00 a.m., Petitioner's counsel left a voice message for the prosecutor, stating that she was on her way to speak to Petitioner to determine whether he still wished to testify and that she would not have access to her cell phone while she was meeting with Petitioner. (Supp. Pet., Ex. D, at 5-4.) As a result of complications at the facility where Petitioner was being held, counsel was not able to meet with Petitioner until 12:20 p.m. (Id.) At 12:30 p.m., while Petitioner's counsel was meeting with Petitioner, the prosecutor left a voice message for Petitioner's counsel on her cell phone that, unless he heard back "right away," he would put the case to the grand jury for a vote and, at approximately 12:45 p.m., the prosecutor presented the case to the grand jury, which voted to indict Petitioner. (Id.) Petitioner's counsel finished her meeting with Petitioner around 1:30 p.m. and, only then, heard the prosecutor's 12:30 p.m. voice message. Counsel called the prosecutor, who informed her that the grand jury had already voted to indict Petitioner. (Supp. Pet., Ex. B, ¶¶ 13-14.)
On February 19, 2003, Petitioner's trial counsel moved to dismiss the indictment, pursuant to Sections 190.50 and 210.20, based on the prosecution's failure to provide Petitioner with a reasonable opportunity to testify on his own behalf before the grand jury. (Supp. Pet., Ex. B.) Following an evidentiary hearing, Judicial Hearing Officer Herbert J. Alderberg found that Petitioner's counsel chose "to conduct a rather lengthy conversation with [Petitioner] that went over the a.m. grand jury session, and compelled them to make a vote." (Supp. Pet., Ex. D, at 21.) JHO Alderberg then made "the affirmative ruling that the [prosecution had] met their burden in this case to produce [Petitioner]. There is testimony . . . either through counsel or inadvertently through counsel that [Petitioner] himself, he chose not . . . to testify." (Id.)
First, as a preliminary matter, the Court notes that a criminal defendant has no federal right to testify before a grand jury. See Afflic v. New York, No. 01 Civ. 6152, 2002 WL 500373, at *1 (S.D.N.Y. Apr. 3, 2002) ("Petitioner's claim that he was not advised of his right to appear before the Grand Jury does not present an issue of constitutional dimension, but merely one of state law"); McMoore v. Miller, No. 98 Civ. 1915, 2002 WL 975305, at *9 (S.D.N.Y. Apr. 19, 2002) (dismissing habeas claim based on petitioner's failure to testify before the grand jury because "[petitioner's] right to testify before a grand jury is based solely on state law, the wrongful denial of that right does not entitle him to a federal writ of habeas corpus") (emphasis in original). Similarly, challenges to the sufficiency of a state indictment are not generally cognizable on federal habeas review. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); Medina v. Herbert, No. 98 Civ. 1871 (RWS), 1998 WL 799173, at *5 (S.D.N.Y. Nov. 16, 1998).
Second, to the extent Petitioner argues that the state court lacked subject matter jurisdiction to try his case, any such argument would appear to be without basis, given that the state court was statutorily vested with jurisdiction as a result of the indictment. See N.Y. Crim. Proc. §§ 10.20, 210.05. In any event, as the crime charged in the indictment (robbery in the second degree, in violation of N.Y. Penal Law § 160.10(2)(a)) was within the state court's jurisdiction, see N.Y. Crim. Proc. § 10.20(1)(a), any other claim directed to the state court's jurisdiction, based on the alleged inadequacy of the indictment as a matter of state law or otherwise, would again be non-cognizable on federal habeas review. See Bowman v. Ercole, No. 09 Civ. 4801(RJH) (THK), 2010 WL 6620879, at *26 (S.D.N.Y. Sept. 1, 2010) (Report & Recommendation), adopted by 2011 WL 1419614 (S.D.N.Y. Apr 11, 2011).
Finally, Petitioner cannot bootstrap his underlying complaints regarding the grand jury proceedings - and, specifically, any deprivation of an opportunity to testify in those proceedings - into a successful, federal claim for ineffective assistance of trial counsel. The right to counsel in criminal prosecutions is grounded in the Sixth Amendment. Because the Constitution "envisions counsel playing a role that is critical to the ability of the adversarial system to produce just results[,] . . . 'the right to counsel is the right to the effective assistance of counsel.'" Strickland v. Washington, 466 U.S. 668, 685-86 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)). Counsel can deprive a criminal defendant of this right "simply by failing to render 'adequate legal assistance.'" Id. at 686 (citation omitted).
In order for counsel to be deemed constitutionally "ineffective," however, counsel's conduct must have "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. Thus, to prevail on an ineffective assistance claim under Strickland, a criminal defendant must show that: (1) his counsel's performance "fell below an objective standard of reasonableness," and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 688, 694. A court may reject an ineffective assistance of counsel claim for failure to satisfy either prong of the Strickland standard, without reaching the other. See id. at 697. ("If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.").
For purposes of habeas review under AEDPA, Strickland sets out the relevant "clearly established federal law." Aparicio v. Artuz, 269 F.3d 78, 95 and n.8 (2d Cir. 2001) ("It is beyond cavil that the Strickland standard qualifies as 'clearly established Federal law.'") (citation omitted). Yet, as "the standards created by Strickland and § 2254(d) are both highly deferential, . . . when the two apply in tandem, review is doubly so." Harrington, 131 S. Ct. at 788 (internal quotations omitted). Thus, "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.
In this case, Petitioner cannot demonstrate that he was prejudiced by any deficiencies in his attorney's representation of him in connection with the grand jury proceedings. Petitioner argues that, had he been given the opportunity, he would have testified that he was assaulted by Rodriguez and her two sons and, thus, "was the victim of the criminal conduct and not the perpetrator of the crime." (Supp. Pet., at ¶ 53; see also Pet. Reply, at 51-52.) Petitioner, however, was convicted by a petit jury of second-degree robbery, subsequent to his indictment by a grand jury on that same charge. Consequently, Petitioner cannot demonstrate any prejudice based on his attorney's failures to secure his right to testify before that grand jury, or to challenge the indictment or the jurisdiction of the state trial court on that basis. See Davis v. Mantello, 42 Fed. Appx. 488, 491 n.1 (2d Cir. 2002) (citations omitted), cert. denied, 538 U.S. 986 (2003) ("New York courts have consistently held that counsel's failure to ensure that the defendant testifies before the grand jury does not amount to ineffective assistance of counsel."); Montalvo v. Annetts, 02 Civ. 1056 (LAK) (AJP), 2003 WL 22962504, at *24 (S.D.N.Y. Dec. 17, 2003) (Report & Recommendation) (compiling cases) (rejecting claim that trial counsel was ineffective for failing to move to dismiss after the alleged violation of the petitioner's right to testify before the grand jury, as the petitioner could not show prejudice in light of his subsequent conviction), adopted by Order, dated Jan. 20, 2004 (Dkt. 29).
For these reasons, the denial of these ineffective assistance of trial counsel claims, both by the Appellate Division on direct appeal (see Ex. 63 (Petitioner's Pro Se Supplemental Brief, arguing that his trial counsel was ineffective for failing to securing Petitioner's right to testify before the grand jury); Ex. 66 (denying claims raised in Petitioner's pro se supplemental brief)) and by the trial court in a motion filed by Petitioner pursuant to Section 440.10 of the New York Criminal Procedure Law (Ex. 90 (Petitioner's Section 440.10 motion, claiming, inter alia, that trial counsel was ineffective for failing to secure Petitioner right to testify before the grand jury, for failing to move to dismiss the indictment in the interest of justice, and for failing to challenge the trial court's jurisdiction), Ex. 91 (denying Petitioner's Section 440.10 motion)), was neither contrary to, nor an unreasonable application of, federal law.
In denying Petitioner's Section 440.10 motion, the trial court stated that the motion was "hereby denied," and then went on to note that Petitioner could not appeal the denial of his Section 190.50 motion (which the trial court erroneously stated was denied on February 19, 2003) by way of a Section 440.10 motion. (Ex. 91.) Petitioner argues that, as the trial court only specifically addressed the denial of his Section 190.50 motion, and, further, stated the wrong date - which, according to Petitioner, suggests that the trial court failed to "thoroughly read" his Section 440.10 motion - the trial court's decision cannot be read as denying the other claims Petitioner raised in his Section 440.10 (and, in particular, those claims he now raises in the habeas proceedings) "on the merits." (See Pet. Reply, at 37-39.) For habeas purposes, however, the trial court's denial of Petitioner's entire Section 440.10 motion must be construed as a denial on the merits of all of the claims raised therein. See Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001) (finding that a claim was decided on the merits where the Appellate Division disposed of the motion as "denied" and a procedural bar was not argued or available).
B. Ineffective Assistance of Appellate Counsel
Petitioner has asserted several claims for ineffective assistance of appellate counsel. Primarily, Petitioner contends that the performance of his appellate counsel was constitutionally ineffective because, on direct appeal, counsel failed to raise numerous claims that, according to Petitioner, were meritorious and would have resulted in the reversal of his conviction (see Supp. Pet., at ¶¶ 25-38), and because counsel failed to arrange for the full pre-trial record to be presented to the appellate court (see id., at ¶¶ 19-24). Petitioner also asserts that the Appellate Division "constructively" denied him effective counsel by refusing to replace the assigned appellate attorney with whom he was not satisfied, by denying his application to strike the appellate brief filed by that counsel, and by considering his appeal based on that purportedly inadequate brief. (See id., at ¶¶ 4-18; Supp. Pet., Exs. C, E.) None of these claims have merit.
1. Failure of Appellate Counsel To Raise Certain Claims
Petitioner contends that his appellate counsel was ineffective for failing to raise numerous claims on direct appeal, including 13 claims that Petitioner, himself, raised in his two pro se supplemental briefs to the Appellate Division on his direct appeal (Exs. 64, 65), specifically that:
(1) Petitioner was denied his right to a 24-hour arraignment;
(2) Petitioner was denied his right to a preliminary hearing pursuant to Section 180.10(2) of New York Criminal Procedure Law;
(3) various of Petitioner's rights were violated during the grand jury process;
(4) Petitioner was denied the right to testify before the grand jury;
(5) Petitioner's right to confront witnesses testifying against him was violated;
(6) the prosecution failed to produce evidence in violation of Rosario;
(7) Petitioner's rights to a fair trial and due process were violated by the failure of the police department to voucher certain evidence;
(8) the trial court committed various errors in charging the jury;
(9) the prosecutor's summation violated Petitioner's right to a fair trial;
(10) Petitioner was denied his right to an impartial court;
(11) the conviction was against the weight of the evidence and based on legally insufficient evidence;
(12) the sentencing court erred in denying Petitioner's counsel's request for an adjournment to obtain transcripts from prior convictions; and
(13) the Honorable Micki A. Scherer lacked authority to hear the case as she was not sworn in as a New York State Supreme Court justice;as well as several other claims, including that:
(1) Petitioner's trial counsel was ineffective, for (a) filing a "facially insufficient" speedy trial motion, (b) failing to object to the "all White Jury," and (c) failing to request inspection of the grand jury minutes;(See Ex. 81, at ¶¶ 52, 59-66; Ex. 82; see also n.3, supra.)
(2) the trial court improperly substituted a juror over trial counsel's objections;
(3) the trial court improperly denied trial counsel a sufficient opportunity to review the criminal record of a prosecution witness;
(4) the felony complaint was "facially insufficient";
(5) the trial court improperly refused trial counsel's request for a two-hour adjournment to allow counsel to prepare Petitioner to testify;
(6) at the Sandoval hearing, the trial court erred in finding that Petitioner's prior convictions would be allowed into evidence in the event that he testified; and
(7) various claims in connection with the alleged denial of Petitioner's right to testify before the grand jury.
In People v. Rosario, 9 N.Y.2d 286 (1961), the New York Court of Appeals held that a criminal defendant is entitled to examine any prior statement of a witness called by the prosecution, where the prior statement relates to the subject matter of the witness' testimony. 9 N.Y.2d at 289-91. That rule was later codified in N.Y. Crim. Proc. § 240.45(1)(a).
At a hearing pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), the trial court determines the extent to which a defendant's criminal history would be allowed into evidence, if the defendant were to testify at trial.
Under the Strickland test (which applies to appellate counsel, as well as trial counsel, see Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)), appellate counsel does not have a duty to advance every available nonfrivolous argument on appeal, see Jones v. Barnes, 463 U.S. 745, 754 (1983). A petitioner, however, may demonstrate 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). 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 . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted). Deference is accorded to an appellate counsel's strategic decision to focus an appeal on select issues, instead of raising every potentially "colorable" claim. Jones, 463 U.S. at 753-54. This is because "[e]xperienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most a few key issues." Id. at 751-52. A brief that raises every colorable claim "runs the risk of burying good arguments . . . in a verbal mound made up of strong and weak contentions." Id. at 753 (citations omitted).
Petitioner's ineffective assistance argument with respect to the claims Petitioner raised in his pro se supplemental briefs fails for the simple reason that Petitioner has not shown that any of these claims were meritorious. Indeed, Petitioner was able to raise all of those claims in his pro se supplemental brief and the Appellate Division considered and summarily rejected them. (Ex. 66.) This alone shows that appellate counsel's conduct did not fall below objectively reasonable standards. Moreover, the fact that Petitioner was able to raise all of these claims himself, on direct appeal - and that they were considered by the appellate court - leads to the further conclusion that, even if Petitioner's attorney had acted unreasonably in failing to raise them in the brief filed by counsel, Petitioner suffered no prejudice as a result. See Hightower v. Kelly, 657 F. Supp. 516, 517-18 (S.D.N.Y. 1987) (finding that "petitioner [had] failed to demonstrate prejudice because all of the arguments petitioner claim[ed] his counsel should have raised on appeal were actually raised, either by counsel or by petitioner himself in his pro se brief to the Appellate Division"); Lowman v. New York, No. 09-CV-0058T, 2011 WL 90996, at *15 (W.D.N.Y. Jan. 11, 2011) (rejecting argument that appellate counsel was ineffective for failing, on direct appeal, to raise claims that had been raised by the petitioner in a pro se supplemental brief and that were rejected by the Appellate Division); Joyner v. Ercole, No. 06 Civ. 0486 (RJD), 2010 WL 4457711, at *7 (E.D.N.Y. Nov. 1, 2010) (same).
As to the remaining claims Petitioner contends his appellate counsel should have raised, appellate counsel is not required to "press nonfrivolous points, . . . if counsel, as a matter of professional judgment, decides not to present those points." Jones v. Barnes, 463 U.S. 745, 751 (1983). The fact that Petitioner could have raised these claims in his pro se supplemental brief, but himself chose not to do so, suggests that counsel's decision to omit these claims was not objectively unreasonable. See Diaz v. Graham, No. 07 Civ. 5379 (SJF), 2011 WL 1303924, at *3 (E.D.N.Y. Mar. 31, 2011) (rejecting claim that appellate counsel was ineffective for failing to raise a claim on direct appeal where "petitioner [had] filed a supplemental pro se brief on his appeal and, thus, could have raised the omitted claim himself").
In any event, an appellate attorney certainly cannot be said to engage in objectively unreasonable conduct, or to cause prejudice, by failing to raise claims that lack merit. See, e.g., United States v. Nersesian, 824 F.2d 1294, 1322 (2d Cir. 1987) ("Counsel certainly is not required to engage in the filing of futile or frivolous motions."). As shown below, Petitioner could not have prevailed on any of the additional claims that he contends his appellate counsel should have raised on appeal:
a. Ineffective Assistance of Trial Counsel
Petitioner's three proposed claims based on ineffective assistance of trial counsel were all without merit. First, while the state court did note that the speedy trial motion filed by Petitioner's counsel was "entirely conclusory," the court nevertheless "reviewed the various adjournments in the case" and rejected the speedy trial claim on the merits. (Ex. 8.) As there is nothing to suggest that the motion would have succeeded had his attorney filed more detailed papers, Petitioner cannot demonstrate prejudice. Second, Petitioner's complaint that he was convicted by an "all White Jury" is not cognizable in any forum, as Petitioner does not suggest that any prospective juror was wrongly stricken as a result of his or her race, and thus, trial counsel was not ineffective for failing to raise such a claim. See Bludson v. Superintendent, No. 9:06-cv-474 (GLS), 2009 WL 704487, at *9 (S.D.N.Y. Mar. 16, 2009) (rejecting claim that the petitioner had been improperly convicted by an "all white" jury, where the petitioner had not alleged "that any prospective juror member was wrongly stricken from the panel because of his or her race," as prohibited by Batson v. Kentucky, 476 U.S. 79 (1986)). Third, trial counsel was not ineffective for failing to seek review of the grand jury transcript: state court records (apparently obtained after Petitioner filed his Supplemental Petition in this habeas proceeding) show that Petitioner's trial counsel did request inspection of the grand jury transcript and, in fact, following an in camera review, the state court found that "the evidence presented [to the grand jury] was legally sufficient to establish the offenses charged and that the integrity of the proceedings was not impaired." (Dkt. 73.)
b. Improper Juror Substitution
Likewise, Petitioner could not have succeeded on his argument that appellate counsel should have raised a claim based on the trial court allowing a juror to be substituted over trial counsel's objections. On the second day of trial, the court replaced a juror because "[i]llness ha[d] overtaken [her] family. No one [wa]s sure when she[] [would] be able to return. It's indefinitely." (Trial Tr., at 13.) In reviewing the Appellate Division's denial of Petitioner's ineffective assistance of appellate counsel claims, this Court must presume that the state court's factual determinations were correct, absent clear and convincing evidence to the contrary. 28 U.S.C. § 2254(e)(1). As Petitioner has not presented clear and convincing evidence to overcome the presumptive correctness of the trial court's finding that the excused juror was unable to serve due to family illness, this Court cannot find that Petitioner's appellate counsel was unreasonable in failing to challenge the juror substitution, on Petitioner's direct appeal.
c. Denial of Opportunity for Trial Counsel To Review Prosecution Witness's Criminal Record
Petitioner also could not have succeeded on a claim that his trial court was wrongfully denied an opportunity to review the criminal record of a prosecution witness, as it appears from the record that the trial court gave counsel that opportunity, by granting a requested adjournment. (See Trial Tr., at 9-12.) In any event, the denial of an adjournment request would have been well within the trial court's discretion. See Matter of Anthony M., 63 N.Y.2d 270, 283 (1984) ("The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court.").
d. Insufficiency of Felony Complaint
Petitioner's proposed claim that the felony complaint was "facially insufficient," in that it supposedly failed to allege sufficient facts to support the charged offense, is also without merit, as "the grand jury indictment super[s]eded any prior accusatory actions, rendering any alleged pre-indictment deficiencies irrelevant." Brown v. Perlman, No. 03 Civ. 2670 (RJH), 2006 WL 2819654, at *6 (S.D.N.Y. Sept. 29, 2006); see also People v. Smith, 757 N.Y.S.2d 491 (2d Dep't 2003) ("[E]ven if the felony complaint was defective, it was superseded by a valid indictment, rendering any claim regarding a purported defect in the felony complaint academic.").
e. Denial of Requested Adjournment
As to the trial court's denial of a two-hour adjournment to allow counsel to prepare Petitioner to testify, Petitioner's trial counsel requested that adjournment at approximately 11:45 a.m. on the final day of trial, explaining that Petitioner had informed counsel that he wanted to testify, but that counsel "had not had an opportunity to work with [Petitioner] . . . for the most part" for six months, because Petitioner had only begun communicating with counsel on the prior day. (Trial Tr., at 73-76.) The court noted that counsel would have the lunch break to prepare Petitioner, should he wish to testify, but denied any further adjournment, finding that Petitioner had had six months to prepare and was responsible for any lack of preparation. (Id.) The denial of the requested adjournment was within the trial court's discretion, see Matter of Antony M., 63 N.Y.2d at 283, and, in any event, Petitioner has not submitted any evidence - let alone clear and convincing evidence - to overcome the presumption that the trial court's factual finding, regarding Petitioner's culpability for his lack of preparation, was correct, see 28 U.S.C. § 2254(e)(1).
f. Erroneous Sandoval Ruling
As to Petitioner's proposed claim challenging the trial court's Sandoval ruling, while the trial court held that it would allow questioning into a prior felony assault conviction, for which Petitioner had served time, the trial court ruled that it would prohibit inquiry into a prior robbery conviction (due to the passage of time since the conviction), as well as a youthful offender conviction. (Transcript of Sandoval Hearing and Voir Dire, dated Dec. 8, 2003 (Dkt. 36), at 5-7.) Based on the record from that hearing, the trial court properly applied Sandoval, 34 N.Y.2d at 375, balancing the probative value of Petitioner's prior convictions and other criminal acts with the risk of unfair prejudice arising from the likelihood that Petitioner would be convicted based on his propensity to commit crimes. Petitioner has not shown how, in light of the record, a challenge to the court's Sandoval ruling could have succeeded.
g. Denial of Petitioner's Right To Testify Before the Grand Jury
Finally, as to those claims relating to the grand jury proceeding that were not specifically raised in Petitioner's pro se supplemental briefs on direct appeal, Petitioner cannot show any prejudice because, as explained above, the claims are without merit. (See supra at 12-17.)
Thus, Petitioner's appellate counsel was not ineffective for failing to raise the numerous claims proposed by Petitioner, and there is no reason for this Court to disturb the decision of the Appellate Division, on coram nobis, denying Petitioner's ineffective assistance claims.
2. Failure of Appellate Counsel To Present the Entire Pre-Trial Record on Appeal
Petitioner also contends that appellate counsel was ineffective for failing to obtain pre-trial records. In particular, Petitioner faults his appellate counsel for failing to obtain: a transcript of the January 22, 2003 arraignment; transcripts of all pre-trial proceedings before Justice Scherer; "the alleged pre-sentence report"; "the court case file jacket"; "the judgment roll, dated February 28, 2005"; an order, dated March 26, 2003, by Justice Scherer, denying Petitioner's Section 190.50 motion to dismiss the indictment; "proof of index number 8780/03, which was assigned to the Article 78 special proceeding"; and transcripts from certain state habeas corpus proceedings. (Ex. 81, at ¶¶ 19, 30.)
As an initial matter, the Court notes that it is not entirely clear that all of the records that, according to Petitioner, were not presented to the Appellate Division were, in fact, omitted from the appellate record. For example, the appellate record contained an Order by Justice Scherer denying Petitioner's Section 190.50 motion, although that Order was dated June 10, 2003, not March 26, 2003, as Petitioner represents. (See Supp. Pet., Ex. F.) Moreover, it may not have been proper for certain of the cited documents to have been included in the record on direct appeal, as those documents did not relate to Petitioner's trial or pre-trial proceedings, but rather to collateral proceedings (e.g., the Article 78 and state habeas corpus proceedings). See N.Y. Crim. Proc. § 5526.
In any event, even if it was unreasonable of appellate counsel not to obtain the specified records and place them before the appellate court, Petitioner has not demonstrated that he suffered any prejudice as the result of his counsel's failures in this regard, and thus he cannot prevail on this ineffective assistance claim. See Gaskin v. United States, 591 F. Supp. 2d 247, 258 (W.D.N.Y. 2008). Petitioner's specific contentions are addressed below:
a. January 22 , 2003 Arraignment Transcript
Petitioner argues that the January 22, 2003 arraignment transcript would have established that his trial counsel "unlawfully waiv[ed] the reading of [Petitioner's] right to a preliminary hearing and the reading of the charges contained in the felony complaint." (Ex. 81, at ¶¶ 55-56.) Presumably, Petitioner believes that he had an ineffective assistance of trial counsel claim relating to those purported waivers. Yet even assuming that trial counsel waived Petitioner's right to a preliminary hearing and to the reading of the charges against Petitioner, this Court cannot conclude that such waivers by counsel would have been objectively unreasonable, as this type of waiver decision typically reflects defense strategy. See N.Y. Crim. Proc. § 180.10, Practice Commentaries (2008) ("The decision as to whether a defendant ought to waive a preliminary hearing requires sensitive consideration of a number of factors."); People v. Benjamin, 866 N.Y.S.2d 93 (N.Y. City Crim. Ct. 2008). Regardless of this, Petitioner has not demonstrated that he was in any way prejudiced, as it appears that the transcript at issue was ultimately included in the record on direct appeal. (See Ex. 58.)
b. Transcripts of Pre-Trial Proceedings Before Justice Scherer
Petitioner also argues that, because appellate counsel failed to obtain transcripts of the pre-trial proceedings before Justice Scherer, Petitioner was unable to support his claims that (1) Justice Scherer erred in denying Petitioner's Section 190.50 motion to dismiss the indictment; (2) Justice Scherer denied Petitioner his right to be present at all material stages of the proceedings against him, including by denying, outside Petitioner's presence, Petitioner's request for a Wade hearing; (3) Justice Scherer erred in denying Petitioner's speedy trial motion; (4) Justice Scherer conspired with the prosecutor to violate Petitioner's rights; (5) Justice Scherer erred in denying Petitioner's request to represent himself; (6) Justice Scherer committed "judicial misconduct"; and (7) Petitioner's trial counsel was ineffective for failing to adopt his pro se May 23, 2003 motion to recuse Justice Scherer. (Ex. 81, at ¶ 55-58.)
A hearing may be held pursuant to United States v. Wade, 388 U.S. 218 (1967), to determine whether a criminal defendant's pre-trial identification was the result of impermissibly suggestive procedures.
Petitioner has not demonstrated that, even with the transcripts in question, he could have prevailed on any of these seven claims that, supposedly, he would have then sought to pursue. As to the first and third claims, the written decisions denying Petitioner's motion to dismiss the indictment and his speedy trial motion were part of the record on direct appeal. (See Supp. Pet., Ex. F; Ex. 8.) Indeed, Petitioner was able to raise both of these claims - as well as the fourth and sixth claims - in his pro se supplemental brief (see Ex. 63), and Petitioner has not demonstrated why additional transcripts were needed or how they would have altered the outcome of Petitioner's appeal.
The second claim, that Petitioner was not present at all material stages of the proceedings, appears to be based on mere speculation. Petitioner points to a transcript of a pre-trial proceeding before Justice Scherer, held on October 29, 2003, as evidence that Justice Scherer made a practice of violating Petitioner's right to be present. (See Pet. Reply, at 46-47 (citing Pre-Trial Tr., dated Oct. 29, 2003 (Dkt. 73) ("THE COURT: [Petitioner] is produced but I'm not bringing him before the Court.")).) In fact, Petitioner had no right to be present at the particular hearing referred to in that instance, as the only matters discussed were a request by Petitioner's trial counsel at that time to be relieved from representation (because Petitioner had filed a disciplinary complaint against him), and scheduling a date for trial. See Russo v. Zon, No. 05 Civ. 0298T, 2009 WL 3614527, at *9 (W.D.N.Y. Oct. 26, 2009) (no constitutionally protected right to be present at a hearing involving scheduling or legal issues). Similarly, Petitioner has not demonstrated that he had a constitutional right to be present at the denial of a request for a Wade hearing. See id. All in all, there is no basis for this Court to believe that transcripts would have shown that the trial court actually excluded Petitioner from any material portions of the pre-trial proceedings.
Petitioner has also made no argument that the trial court's denial of a Wade hearing in his case was improper.
As to the fifth claim, appellate counsel argued on appeal that Petitioner was improperly denied his right to represent himself at trial, and included numerous cites to the trial record. (See Ex. 62, at 3-7, 13-20.) In denying the claim, the Appellate Division found that the trial court properly denied Petitioner's requests to represent himself, as Petitioner's requests were "equivocal since they were overshadowed by his numerous other applications" and "part of a course of conduct calculated to undermine, upset or unreasonably delay the progress of trial." (Ex. 66 (internal quotations and citations omitted).) There is no reason to believe that additional transcripts would have altered the Appellate Division's analysis or rejection of this claim.
Lastly, as to the seventh claim, Petitioner was not prejudiced by his supposed inability to raise this ineffective assistance claim, as his trial counsel's failure to adopt his pro se May 23, 2003 motion to recuse Judge Scherer was not objectively unreasonable: the basis for Petitioner's motion (that Judge Scherer's appointment as an "Acting" New York State Supreme Court Justice was improper, as she was sworn in as a New York City Criminal Court Judge) was wholly without merit. See N.Y. Const. Art. 6 § 26(g), (k) (providing that a judge of a New York city court "may be temporarily assigned to the supreme court in the judicial department of his or her residence"). Moreover, Petitioner's additional complaints of bias by Justice Scherer (based on the judge's denial of various pre-trial motions, her alleged conspiracy with JHO Adlerberg to deny Petitioner his right to testify before the grand jury, and her failure to properly consider Petitioner's recusal motions (see Ex. 63, at 48-56)), are not sufficient to support a finding of judicial bias under either federal or state law. See Francolino v. Kuhlman, 365 F.3d 137, 143 (2d Cir. 2004) ("[J]udicial rulings and judicial remarks during the course of a trial that are disapproving of, or even hostile to, counsel, the parties, or their cases do not support a claim of bias or partiality unless they reveal 'such a high degree of favoritism or antagonism as to make fair judgment impossible.'" (quoting Liteky v. United States, 510 U.S. 540, 555 (1994))); Sorrenti v. City of New York, 851 N.Y.S.2d 61 (N.Y. Sup. 2007).
c. Remaining Records
With respect to the remaining records referenced by Petitioner, Petitioner merely concludes that "numerous other violations of [Petitioner's] rights [are] contained in the said missing transcripts that [Petitioner is] presently unable to present to this Court . . . ." (Ex. 81, at ¶ 57.) Such conclusory allegations, however, are not sufficient to support an ineffective assistance of appellate counsel claim. See Polanco v. United States, Nos. 99 Civ. 5739, 94 Cr. 453 (CSH), 2000 WL 1072303, at *10 (S.D.N.Y. Aug. 3, 2000) ("[W]holesale and vague accusations are patently insufficient to meet the Strickland standard.").
For these reasons, this Court cannot conclude that Petitioner's appellate counsel was ineffective for failing to obtain, or to present to the Appellate Division, the records in question. Nor does the Court have any basis to conclude that the Appellate Division's decision on coram nobis, rejecting this ineffective assistance claim, was either contrary to, or an unreasonable application of federal law, under AEDPA. See 28 U.S.C. § 2254(d).
3. Denial of Requests for Substitute Appellate Counsel and To Strike the Counseled Brief
Finally, Petitioner contends that the Appellate Division's denial of his requests to substitute appellate counsel and to strike his counseled brief constructively denied him effective assistance of counsel. "The [Sixth] Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts." Caplin & Drysdale v. United States, 491 U.S. 617, 624 (1989). Further, when a defendant chooses to be represented by counsel, the defendant is obligated to follow counsel's exercise of professional judgment and control of the defense: all strategic and tactical decisions - other than the decisions to plead guilty, to waive a jury trial, or to testify - are the "exclusive province" of defense counsel and may not be overridden by the defendant. Jones v. Barnes, 463 U.S. 745, 754 n.6 (1983); Henry v. Mississippi, 379 U.S. 443, 451 (1965).
In this case, Petitioner's appointed appellate counsel raised three colorable claims on Petitioner's behalf: (1) that Petitioner was improperly denied his right to proceed pro se at his trial; (2) that the trial court erred in denying the request made by Petitioner's trial counsel for a competency examination, pursuant to Section 730.30(1) of the New York Criminal Procedure Law; and (3) that Petitioner's sentencing pursuant to New York's persistent violent felony offender statutes was unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000). (See Ex. 62.) While Petitioner contends that his appellate attorney failed to gain his consent to raise these claims, appellate counsel is not required to obtain a client's consent regarding which claims to assert on direct appeal. See Campbell v. Green, 440 F. Supp. 2d 125, 151-52 (N.D.N.Y. 2006). Based on a review of the appellate brief filed by Petitioner's counsel, as well as the claims, set forth above, that Petitioner argues his appellate counsel should have raised, this Court finds that Petitioner's appellate counsel representation of Petitioner was well within the "wide range of professionally competent assistance," Mayo, 13 F.3d at 533.
For all of these reasons, the Appellate Division's rejection of Petitioner's ineffective assistance of appellate counsel claims in his first coram nobis proceeding (Dkt. 85), was neither contrary to, nor an unreasonable application of, established federal law. See 28 U.S.C. § 2254(d).
C. Fifth Amendment Claim
In connection with his claim that the Appellate Division should have stricken the appellate brief filed by his allegedly ineffective appellate counsel, Petitioner also makes the argument that the court violated his Fifth Amendment right against self-incrimination. (See Supp. Pet., at ¶¶ 14-18.) In particular, Petitioner contends that his attorney "falsely argu[ed] that [Petitioner] committed the robbery because [Petitioner] suffered from a mental illness." (Ex. 33, at 8 (arguing that the counseled brief to the Appellate Division improperly adopted the prosecution's version of the events of January 20, 2003, thereby "implicating [Petitioner] in a crime [he] did not commit," and "attempt[ed] to make [Petitioner] appear insane or incompetent.").)
Petitioner appears to be referring to the following passage in the brief filed by his appellate counsel:
[T]he complainant [Rodriguez] could not understand why Petitioner was 'poking' at her and her children, and why he had grabbed her bag and hit her, believing he must have been drunk. He was not drunk; he was probably suffering from mental illness, and he deserved the right to have a [competency] examination to find out if he was competent to stand trial.(Ex. 62, at 22.) This argument does not, however, implicate Petitioner's right against self-incrimination. Counsel did not concede Petitioner's guilt or, for that matter, that the evidence presented at trial was legally sufficient to support conviction. Rather, counsel relied on the evidence presented at trial to make a plausible argument that the trial court should have conducted a competency hearing. While Petitioner may take issue with his appellate attorney's decision to challenge the trial court's denial of the motion for a competency examination, counsel cannot be faulted for raising a potentially viable argument on appeal, and, as noted above, appellate counsel had no obligation to obtain Petitioner's consent as to which issues to pursue on appeal. (See supra at 30-31.)
For these reasons, and based on a review of the brief filed on direct appeal by Petitioner's appellate counsel, the state court's denial of Petitioner's claim (Exs. 37, 52, 57, 85) was neither contrary to, nor an unreasonable application of, established federal law. See 28 U.S.C. § 2254(d).
D. Due Process Violations
Finally, Petitioner seems to raise a number of constitutional due process claims, arguing that the trial court violated his due process rights when it tried the case without jurisdiction (given the allegedly defective indictment) (see Supp. Pet., at ¶¶ 65-76), and that the Appellate Division denied him a fair appeal, both by denying him effective counsel and by deciding his direct appeal based on an inadequate appellate brief and without benefit of a full pre-trial record (see id., at ¶¶ 4-24). "Due process guarantees that a criminal defendant will be treated with 'that fundamental fairness essential to the very concept of justice. In order to declare a denial of it [a court] must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.'" United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982); see also Taveras v. Smith, 463 F.3d 141, 147 (2d Cir. 2006) ("[T]he due process clause forbids states from establishing a system of appeals as of right but then refusing to provide each defendant with a fair opportunity for adjudication . . . ." (citing Evitts v. Lucey, 469 U.S. 387, 404-05 (1985))).
Here, Petitioner has not shown that either his trial or direct appeal were fundamentally unfair. As to Petitioner's contention regarding the jurisdiction of the trial court, challenges concerning a state grand jury proceeding are, as explained above, "a fortiori foreclosed in a collateral attack brought in federal court," where, as here, the petitioner was convicted by a jury. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). In any event, the failure to allow a defendant to testify before the grand jury prior to indictment would not render the trial itself so fundamentally unfair as to give rise to a constitutional due process violation.
As to Petitioner's challenges to the appellate process, as set forth in more detail above, Petitioner has not shown any prejudice arising from the records he contends should have been included in his direct appeal, see Santiago v. Coughlin, 107 F.3d 4 (2d Cir. 1997) (unpublished) ("In order to prevail on his habeas claim that the Appellate Division infringed upon his right to a fair appeal, [a petitioner] must show prejudice resulting from the missing or incomplete transcript.") (internal quotation omitted), or from the Appellate Division's consideration of the brief filed by Petitioner's counsel. Taken as a whole, Petitioner has not demonstrated that his direct appeal was fundamentally unfair.
Accordingly, the Appellate Division's repeated denial of these due process claims (see, e.g., Dkts. 24, 37, 51, 52, 57, 58, 85) was neither contrary to, nor an unreasonable application of, federal law.
CONCLUSION
For the foregoing reasons, I recommend that the claims asserted by Petitioner in his habeas Petition and Supplemental Petition be dismissed in their entirety.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) 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 Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, United States Courthouse, 500 Pearl Street, Room 2260, New York, New York 10007, and to the chambers of the undersigned, United States Courthouse, 500 Pearl Street, Room 525, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Castel. FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Hermann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). Dated: New York, New York
July 19, 2011
Respectfully submitted,
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies To: Hon. P. Kevin Castel, U.S.D.J. Mr. Tyrone Jackson
04-A-1354
Sing Sing Correctional Facility
354 Hunter Street
Ossining, NY 10562 Paul Bernard Lyons, Esq.
Assistant Attorney General
New York State Office of the Attorney General
120 Broadway
New York, NY 10271