Opinion
1:21-cv-00998 (AJN) (SDA)
09-18-2021
Bismarck Lithgow, Petitioner, v. William F. Keyser, Superintendent, Sullivan Correctional Facility, Respondent.
HONORABLE ALISON J. NATHAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
STEWART D. AARON United States Magistrate Judge
INTRODUCTION
Pro se Petitioner Bismarck (“Lithgow” or “Petitioner”), currently incarcerated at Sullivan Correctional Facility in New York State, seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. (Pet., ECF No. 1, at 1.) On April 1, 2015, following a jury trial, a judgment was rendered in the Supreme Court of the State of New York, New York County, convicting Petitioner of Second Degree Murder under Penal Law § 125.25(1) and sentencing him to an indeterminate prison term of twenty-one years to life. (Pet. at 1; Answer, ECF No. 18, ¶ 2.)
Lithgow's Petition consists of a sixteen-page form, into which Lithgow has inserted additional typed pages, followed by twelve exhibits. The Petition, Exhibits A through J and part of Exhibit K are filed to the ECF docket as ECF No. 1. The remainder of Exhibit K and Exhibits L through Q are filed as ECF No. 1-1. Citations to the Petition consist of the prefix “Pet.” followed by the PDF page number contained in ECF No. 1 (e.g., “Pet. at 1”). Where an exhibit to the Petition is cited, the exhibit letter is identified prior to the PDF page number contained in ECF No. 1 or 1.1 (e.g., “Pet. Ex. A at 49”).
Petitioner challenges his conviction on grounds of (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) errors made by the trial court in failing (a) to determine Petitioner's competency, and (b) to develop the record concerning Petitioner's allegations of misconduct committed by one of the court-provided interpreters. (See Pet. at 5-10, 21-30.) For the reasons set forth below, I respectfully recommend that the Petition be DENIED.
BACKGROUND
I. Facts Giving Rise To Lithgow's Conviction
The following facts are derived from trial testimony. The trial transcript was filed by Respondent in two parts, with Part I filed at ECF No. 18-2 and Part II filed at ECF No. 18-3. Citations to pages of the trial transcript are made using the prefix “Tr.” followed by the page number of the transcript itself (e.g., “Tr. 1”). Part I comprises the first 944 pages of the trial transcript; Part II begins with page 945.
The incident giving rise to Lithgow's conviction occurred on February 28, 2013. On that date, Lithgow stabbed Francis Pellerano (“Pellerano”) to death in Lithgow's New York City apartment, located at 2400 Seventh Avenue in Harlem. (Tr. 55-58, 319-23, 1171-75, 1340-41, 1345.)
A. Leadup To The Murder
Pellerano, a nineteen-year-old woman at the time of her death, met Lithgow on Facebook sometime before December 21, 2012. (Tr. 93-94, 121-24, 387-90.) In December 2012, Pellerano came to New York from Rhode Island to see Lithgow. (Tr. 389-90.) Pellerano and Lithgow, who were both deaf, became romantically involved and Pellerano decided to stay in Lithgow's apartment. (Tr. 94, 390-93.)
Lithgow shared the apartment with his grandmother, Elena Cruz (“Cruz”), and his mother, Lilliana Rivas (“Rivas”). (Tr. 93-94.)
In February 2013, Lithgow began to complain to his friends about Pellerano flirting online with other men. (Tr. 530-32, 568, 572-75, 658-59, 662-63.) Pellerano expressed concern about Lithgow's jealousy and felt that “she needed her own space.” (Tr. 128-30, 395-97.) Around this time, Lithgow was in contact with various acquaintances about purchasing a gun. (Tr. 577-79, 584-85, 685-87, 690, 699-703, 678.) On or around February 18, 2013, Pellerano informed Lithgow that she planned to fly to Santo Domingo, Dominican Republic, to visit her mother, Jacqueline Ortiz (“Ortiz”). (Tr. 128-30, 664-65.) At some point shortly before February 28, 2013, Lithgow claims to have seen Pellerano use his iPad to add a male Facebook friend, and to have believed that “she was cheating with a guy and that wasn't funny.” (Tr. 1115-16, 1119, 1164-67, 1197-98.) On February 27, 2013, at around 11:00 p.m., Pellerano called Ortiz and told her that she would arrive in Santo Domingo in two days. (Tr. 139-40.)
B. Pellerano's Murder
At some time on February 28, 2013, Lithgow stabbed Pellerano more than 30 times in his apartment, killing her. (Tr. 1022-23, 1130-31, 1340-41.) Lithgow then concealed Pellerano's body in a barrel, cleaned up the blood in his apartment and placed the knife he used to stab her in a trash bag in his bedroom. (Tr. 1027, 1403, 1734.) After the killing, Lithgow told various people, including Cruz, his friends and Pellerano's friends, that he had broken up with Pellerano and that she had left for Santo Domingo. (Tr. 602-03, 1027, 1403-04.)
On March 2, 2013, Cruz went into Lithgow's bedroom, noticed the barrel and two suitcases and detected a strange smell. (Tr. 112-15.) Cruz then called her daughter (and Lithgow's mother), Rivas. (Tr. 114.) After Rivas arrived at the apartment, she opened the barrel in the bedroom and saw a body inside. (Id.) Rivas called 911. (Id.)
C. The Police Investigation
Shortly after Rivas called 911, Police Officer Ryan Loomis arrived at Lithgow's apartment. (Tr. 54-57, 62-63.) Officer Loomis found Lithgow's bedroom “spotless, ” but noticed the barrel in the middle of the room. (Id.) When he removed the barrel's lid, Officer Loomis recognized the odor of a dead body and saw blankets wrapped around what he thought looked like a body. (Tr. 57-58.) Emergency medical service workers soon arrived at the apartment and pronounced the victim in the barrel, later identified as Pellerano, dead. (Tr. 59.)
On March 3, 2013, Dr. Gregory Vincent (“Vincent”), the New York City Office of the Chief Medical Examiner, conducted an autopsy on Pellerano's body. (Tr. 345-46, 352-53.) Vincent found a total of thirty-eight “sharp force injuries” on Pellerano's body and opined that she had died one to five days earlier. (Tr. 369-71, 492-93.)
On March 3, 2013, Detective Patrick Parke of the New York Police Department's Crime Scene Unit and his colleagues went to Lithgow's apartment. (Tr. 163-67, 176-77.) Detective Parke recovered, among other things, an engraved hunting knife that appeared to have blood on the blade, bedding with large blood stains, and a pillow that appeared to have blood and “knife damage” on it. (Tr. 204-10, 230-36.) Detective Sergeant Kristine Gosling opened the suitcases in the bedroom and found “female clothing, shoes, clothes and two cellphones” inside. (Tr. 259-64.) Elsewhere in the bedroom, Detective Gosling found a pocketbook containing a Social Security card belonging to Pellerano. (Tr. 261-62.) Detective Christopher Killen also coordinated with Rivas to collect some of Lithgow's belongings from the apartment, including a white iPhone. (Tr. 252-53.)
Between March 3 and March 20, 2013, Rachel McCloskey, a criminalist at the New York City Office of the Chief Medical Examiner, performed DNA testing on several pieces of evidence recovered from Lithgow's apartment, including a DNA swab from the engraved knife, a DNA swab from Lithgow, and a blood sample from Pellerano. (Tr. 306-07, 320-23, 336-37.) The swab from the knife contained DNA from Pellerano and Male Donor A. Male Donor A's profile was consistent with the sample of Lithgow's DNA. (See Tr. 333-35, 337-38, 342-44.) That DNA profile most likely “would [be] expect[ed] [to be found] once in greater than 6.8 trillion people.” (Tr. 338, 344.)
D. Lithgow's Arrest
On March 20, 2013, based upon the preliminary DNA evidence, Detective Delwyn Davis arrested Lithgow. (Tr. 518-19.)
II. Relevant State Court Proceedings
A. Indictment
By New York County Indictment Number 1225/2013, filed on March 25, 2013, Lithgow was charged with Murder in the Second Degree under Penal Law § 125.25(1). (Answer, Ex. B, at 75.)
B. Trial
On January 21, 2015, Lithgow's trial began before Justice Laura A. Ward in New York County Supreme Court. (Voir Dire Tr., ECF No. 18-1 (hereinafter “VD Tr.”), 1.) Lithgow was represented at trial by two attorneys from The Legal Aid Society. (See id.) Two interpreters were used at all times during the trial, an American Sign Language (“ASL”) interpreter and a certified deaf interpreter (“CDI”). (Pet. Ex. F at 168, ¶¶ 12-13.) While Francis Schrader (“Schrader”) served as the CDI in Lithgow's interviews with Hershberger, Schrader did not serve as the CDI during the trial. (Pet. Ex. F at 168, ¶ 13; VD Tr. 57-58.) In the beginning of voir dire, Justice Ward informed the parties that Schrader no longer could serve as the CDI because “he [now has] an emotional attachment with [Lithgow].” (VD Tr. 57-58.)
CDIs “must always work together with” ASL interpreters to facilitate communication between a deaf person and a hearing individual. (Pet. Ex. F at 168, ¶ 12.)
During voir dire, Lithgow twice informed Justice Ward that he needed “more facial expressions and more gesturing” from the ASL interpreter to better understand the interpreter's signs. (VD Tr. 60-61, 127-28.) In both instances, Justice Ward addressed the issue and confirmed with Lithgow that he was able to understand the ASL interpreter. (Id.) Justice Ward also encouraged Lithgow to continue raising such issues during the course of the trial. (VD Tr. 128.) During the remainder of voir dire, Justice Ward twice asked Lithgow whether he could understand the ASL interpreter, and he responded that he could both times. (See VD Tr. 239 (“Yes, your Honor, it's clear.”), 928 (“Yes, I'm comfortable with the communication.”).) During the trial, Justice Ward also addressed Lithgow on numerous occasions and Lithgow responded directly. (See, e.g., Tr. 356, 631-32, 1300.)
1. People's Case
During trial, the People offered testimony from numerous witnesses regarding the facts and circumstances set forth in Background Section I, supra.
2. Extreme Emotional Disturbance (“EED”) Defense
After the People rested (Tr. 709), the defense called Rivas (Lithgow's mother) to testify regarding Lithgow's childhood, raising him as a deaf child and his relationship with Pellerano. (See Tr. 712-53.) The defense next called a forensic psychiatrist, Dr. Annie Steinberg, to testify. (Tr. 816.) Dr. Steinberg had prepared a “draft report” based on two interviews with Lithgow, interviews with his friends and family members and review of medical records. (Tr. 886, 1154.)
In her draft report, Dr. Steinberg found Lithgow was in a state of “extreme emotional disturbance for which there [was] a reasonable explanation or excuse at the time of the killing.” (Tr. 886, 1025-27.) Dr. Steinberg also provided a “diagnostic impression” of Lithgow and found that he had “a major depressive disorder with psychotic features or elements.” (Tr. 1052, 1063.)
After review of additional materials and review of a report prepared for the prosecution, Dr. Steinberg changed her initial opinion and found that Lithgow “lost control of himself” in that he “experienced extreme emotional disturbance at the time of the crime.” (Tr. 892, 1108-13.) Dr. Steinberg also changed her initial diagnosis of Lithgow to a diagnosis of “primitive personality disorder.” (Tr. 1108-13, 1123, 1299-300.) While Dr. Steinberg acknowledged that she “could have had more skepticism” about Lithgow's representations, she maintained her conclusion that Lithgow acted under EED when he stabbed Pellerano. (Tr. 1306-07.)
3. Rebuttal
To rebut Dr. Steinberg's testimony, the People called their own forensic psychiatrist, Dr. Jason Hershberger. (Tr. 1311.) Dr. Hershberger interviewed Lithgow on three separate occasions and concluded that, at the time of the killing, Lithgow “was not operating under an extreme emotional disturbance for which there is a reasonable explanation or excuse.” (Tr. 1323-24.) Dr. Hershberger based his conclusion, in part, on the fact that Lithgow presented numerous lies “to [Dr. Hershberger] and . . . to many other people about what he was thinking and doing at the time of the event.” (Tr. 1324-25, 1730-33.) Further, Dr. Hershberger found that Lithgow's behavior was inconsistent with his EED claim, noting that:
[I]f someone suffers from an extreme emotional disturbance in which they lose their mind, do something out of character, out of their control, maybe even out of their awareness in some way and they regroup, they get control of their faculties, they get control of themselves again and they see what they have done,
the response is typically horror, the response usually is trying to save the person, trying to get help.(Tr. 1402-03.) In contrast, Dr. Hershberger observed, “Mr. Lithgow went about cleaning the crime scene, went about hiding the body, went about trying to deceive her friends[, ] his family, her friends and physicians that were taking care of him[, ] all to cover up what he had done, ” none of which is “the response one would have if one did something out of character in an impulsive emotional reaction.” (Tr. 1403-04.) Dr. Hershberger also testified that a diagnosis of “primitive personality disorder” “d[oes]n't exist” because neither the American Psychiatric Association nor the American Psychiatric Society medically recognize that disorder. (Tr. 1451-53.)
4. Summations, Charge And Verdict
During summation, Lithgow's counsel argued that there was a “reasonable explanation for why [Lithgow] killed [Pellerano] in such an enraged state.” (See Tr. 1824.) Justice Ward charged the jury on one count, Murder in the Second Degree. (Tr. 1939.) She advised the jury that there was an affirmative defense to that charge if Lithgow “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse.” (Tr. 1941.) The jury convicted Lithgow of Murder in the Second Degree. (Tr. 1958.)
The sentencing transcript (“S. Tr.”) is filed at ECF No. 18-4.
On April 1, 2015, Lithgow was sentenced to a prison term of twenty-one years to life imprisonment. (S. Tr. 14.)
D. Direct Appeal
In May 2018, Lithgow, through his appellate counsel, The Legal Aid Society, filed a direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department. (Pet. Ex. A at 55, 109.) In a fifty-five-page brief, Lithgow raised the following claims: (1) the prosecutor's summation remarks warranted reversal because they misstated the law of EED, denigrated the defense of EED and prevented the jurors from fairly considering the Petitioner's EED defense; and (2) that the court should reduce his sentence to the legal minimum of fifteen years to life on the basis that his sentence was excessive. (See id. at 97-109.) Subsequently, on May 18, 2018, Lithgow filed a pro se supplemental brief in which he raised the claim that the jury at his state trial should have included “at least 1 or 2 [deaf] people.” (Id. at 117-18.) The Appellate Division heard oral argument on March 20, 2019. (Resp.'s Mem., ECF No. 19, at 37.)
Petitioner's Appellate Division Brief and Pro Se Supplemental Brief are filed at ECF No. 1 as part of Exhibit A to the Petition.
On April 11, 2019, the Appellate Division unanimously affirmed Lithgow's conviction. People v. Lithgow, 171 A.D.3d 517 (1st Dep't 2019). With respect to the first ground for appeal, the Appellate Division held that “[Petitioner] did not preserve his challenges to the prosecutor's summation” and declined to review those challenges “in the interest of justice.” Id. As an alternative holding, the Appellate Division found “no basis for reversal.” Id. The court noted that, “[t]o the extent that parts of the [prosecutor's] summation contained misstatements of law, ‘any prejudice was avoided by the [trial] court's charge, which the jury is presumed to have followed.'” Id. (citing People v. Ramos, 162 A.D.3d 453, 454 (1st Dep't 2018)). The court also noted that some of the prosecutor's summation comments might have “crossed the line of propriety, ” but held that no remark or conduct was “so egregious as to warrant reversal.” Id. (citations omitted). With respect to the second ground for appeal, the Appellate Division held that it “perceive[d] no basis for reducing the sentence.” Id. Finally, the court found the claims in the Petitioner's pro se supplemental brief “unavailing.” Id.
E. Denial Of Leave To Appeal To The Court Of Appeals
Petitioner filed a counseled leave application with the Court of Appeals of the State of New York, asking the court to review the issues raised in his Appellate Division brief. (Pet. Ex. C at 124.) On July 17, 2019, Judge Rowan D. Wilson of the New York State Court of Appeals denied Lithgow's application for leave to appeal. People v. Lithgow, 33 N.Y.3d 1106 (2019).
The Order Denying Leave of the New York State Court of Appeals is filed at ECF No. 1 as part of Exhibit C to the Petition.
F. Petitioner's CPL § 440.10 Motion
By letter dated May 24, 2019, Lithgow filed a pro se motion to vacate the April 1, 2015 New York County judgment of conviction under Section 440.10 of the New York Criminal Procedure Law (“CPL”) in the New York County Supreme Court. N.Y. Crim. Proc. § 440.10 (McKinney 2021). (See Pet. Ex. D at 126-41.) Lithgow argued that the court should vacate his conviction and give him a new trial on three grounds: (1) ineffective assistance of trial counsel; (2) abuse of discretion by the trial court in failing to determine the competency and capacity of the Petitioner; and (3) ineffective assistance of appellate counsel. (Id. at 129-30, 133, 140.)
With regard to his first claim, Lithgow asserted that his counsel should have requested a competency hearing, due to, among other reasons, his low IQ. (See Pet. Ex. D at 131-32.) Lithgow further asserted that his counsel did not inform Justice Ward that CDI Schrader “interpret[ed] wrong[ly] on purpose to make [Petitioner] look like a liar.” (See id. at 135-36.) According to Lithgow, he had met CDI Schrader at a program for deaf people in February 2012. (See Pet. at 5-6; Pet. Ex. D at 135-36.) Lithgow maintained that, during this program, CDI Schrader molested him, and that Lithgow reported the molestation to the New York City Police Department's 32nd Precinct (the “32nd Precinct”) the next month. (Pet. Ex. D at 135.) Lithgow claimed that he alerted his counsel to this issue, but they told him “this information was not important.” (Id.)
With regard to his second claim, Lithgow argued that Justice Ward failed to inquire, sua sponte, into his mental competency. (Pet. Ex. D at 138-39.) Lithgow contended that a competency hearing was required because he “did not have any way to communicate for 14 years of his life” and because he told the trial court that he did not understand his interpreters. (Id. at 138.)
With regard to his third claim, Lithgow argued that his appellate counsel improperly failed to raise ineffective assistance of trial counsel because both appellate counsel and trial counsel worked at The Legal Aid Society. (Pet. Ex. D at 133.)
On August 26, 2019, Justice Ward denied Lithgow's motion in its entirety. (Pet. Ex. G at 189-91.) On the claim that CDI Schrader falsely interpreted Petitioner's statements, Justice Ward found that Petitioner's claim regarding the alleged molestation was “directly contradicted by the fact that” Petitioner never filed a police report about the incident. (Id. at 190.) With regard to the Petitioner's mental competency, Justice Ward found that “multiple doctors interviewed [Lithgow] and had no difficulty in communicating with [Lithgow] and competency to stand trial was never raised.” (Id. at 190.) With regard to ineffective assistance of appellate counsel, Justice Ward found that, because the Legal Aid Society represented Lithgow both at trial and on appeal, it would be inappropriate for them to raise an ineffective assistance of trial counsel claim and that the “conflict of interest had no impact on [Lithgow's] direct appeal, which was based on other grounds.” (Id. at 191.)
Justice Ward noted that the Respondents provided evidence that there was no complaint filed against Schrader in the 32nd Precinct between 2010 and 2014 and that the only complaint filed by Petitioner during this time period in the 32nd Precinct related to a lost wallet. (Pet. Ex. G at 190-91.)
G. Petitioner's Coram Nobis Petition And Leave To Appeal
On July 13, 2020, Lithgow filed a pro se application for a writ of error coram nobis in the Appellate Division. (Pet. Ex. J at 212.) In his application, Lithgow argued that appellate counsel was ineffective for failing to use the strongest arguments for his direct appeal, including ineffective assistance of trial counsel, which could have led to a reversal of his conviction. (See Id. at 216-20.) On October 20, 2020, the Appellate Division denied the application without explanation. (See Answer at 155.)
The Denial of Petition for Writ of Error Coram Nobis is filed at ECF No. 18, PDF page 155, as Exhibit F to the Answer.
On January 1, 2021, the New York State Court of Appeals denied Lithgow's subsequent application for leave to appeal. People v. Lithgow, 36 N.Y.3d 1051 (2021).
III. Habeas Petition
On February 4, 2021, Lithgow filed the Petition now before the Court. (See Pet.) The Petition raises the following grounds: (1) ineffective assistance of trial counsel; (2) ineffective assistance of appellate counsel; and (3) errors made by the trial court in failing (a) to determine Petitioner's competency, and (b) to develop the record concerning Petitioner's allegations of misconduct committed by one of the court-provided interpreters. (See Pet. at 5-10, 21-30.)
On the same day the Petition was filed, Lithgow filed a motion for appointment of counsel. (See Pet.'s 2/4/21 Mot., ECF No. 3.) By Order, dated March 15, 2021, the Court denied this motion “on the ground that the application together with the other papers filed in this action d[id] not at [that] time demonstrate that Petitioner's claims [were] likely to be of sufficient substance to warrant seeking counsel.” (3/15/21 Order, ECF No. 13.)
On February 24, 2021, this case was referred to me for a report and recommendation. (See Am. Order of Reference, ECF No. 11.) On June 3, 2021, Respondent filed his papers in opposition to the Petition. (See Answer; Resp.'s Mem.) On July 13, 2021, Petitioner filed his reply. (See Reply, ECF No. 22.)
LEGAL STANDARDS
I. AEDPA Generally
Under 28 U.S.C. § 2254(a), as amended by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “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). For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
A state court decision is “contrary to, ” or an “unreasonable application of, ” clearly established law if it: (1) is contrary to Supreme Court precedent on a question of law; (2) arrives at a conclusion different than that reached by the Supreme Court on “materially indistinguishable” facts; or (3) identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. Id. at 412-13. The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted).
II. Ineffective Assistance Of Counsel
“The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686 (1984). “To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's representation ‘fell below an objective standard of reasonableness,' and (2) that he suffered prejudice[.]” Momplaisir v. Capra, 718 Fed.Appx. 91, 92 (2d Cir. 2018) (citing Strickland, 466 U.S. at 688, 694).
Under the first Strickland prong, there is a “strong presumption” that a lawyer's conduct “falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Thus, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.” Id.; see also Silva v. Keyser, 271 F.Supp.3d 527, 546 (S.D.N.Y. 2017) (“a defendant has the burden of proving ‘that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.'”) (quoting Kimmelman v. Morrison, 477 U.S. 365, 381 (1985) (citing Strickland, 466 U.S. at 688-89)). “In considering whether counsel ‘failed to exercise the skills and diligence that a reasonably competent attorney would provide under similar circumstances,' Boria v. Keane, 99 F.3d 492, 496 (2d Cir. 1996) (emphasis omitted), the Court looks to the totality of the record and must make ‘every effort . . . to eliminate the distorting effects of hindsight.'” Guerrero v. United States, No. 07-CR-00248 (GHW), 2017 WL 1435743, at *6 (S.D.N.Y. Apr. 20, 2017) (quoting Strickland, 466 U.S. at 688-89).
Under the second Strickland prong, a petitioner must demonstrate that the ineffective assistance prejudiced the defense, which means showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
In evaluating whether counsel's performance was ineffective, appellate counsel is subject to the same standard as trial counsel. See Smith v. Robbins, 528 U.S. 259, 285 (2000) (“[T]he proper standard for evaluating [petitioner's] claim that appellate counsel was ineffective in neglecting to file a merits brief is that enunciated in Strickland v. Washington.”). “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 191, 199 (2d Cir. 2001). Moreover, under AEDPA, a petitioner must show that the state court's application of the Strickland standard was not simply incorrect, but was objectively unreasonable. See Harrington v. Richter, 562 U.S. 86, 101 (2011); see also Fischer v. Smith, 780 F.3d 556, 561 (2d Cir. 2015) (“The standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.”) (internal citations omitted). Thus, on habeas review, a federal court may reverse a state court ruling “only where it was so lacking in justification that there was . . . no possibility for fair-minded disagreement.” Fischer, 780 F.3d at 562 (internal quotation omitted).
III. Exhaustion Requirement And Procedural Bar
“[B]efore a federal court can consider a habeas application brought by a state prisoner, the habeas applicant must exhaust all of his state remedies.” Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011) (citing 28 U.S.C. § 2254(b)(1)(A)). The exhaustion requirement has two components. See Parrish v. Lee, No. 10-CV-08708 (KMK), 2015 WL 7302762, at *6 (S.D.N.Y. Nov. 18, 2015). First, a court considers whether the petitioner “‘fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts.'” Id. (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)). “Second, having presented [the] federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim.” Parrish, 2015 WL 7302762, at *7 (quoting Klein, 667 F.2d at 282). In connection with this requirement, “the Supreme Court has held that when a ‘petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas courts also must deem the claim procedurally defaulted.” Sweet v. Bennett, 353 F.3d 135, 139 (2d Cir. 2003) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n.1 (1991)).
“When a petitioner can no longer present his unexhausted claim of trial error to the state courts, ” a federal court sitting in habeas review “deem[s] the claim procedurally barred.” Richardson v. Superintendent of Mid-Orange Corr. Facility, 621 F.3d 196, 201 (2d Cir. 2010) (internal quotation marks and citations omitted). The merits of a procedurally defaulted claim may not be reviewed by a federal court “unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claim[] will result in a fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Dretke v. Haley, 541 U.S. 386, 388 (2004) (“[A] federal court will not entertain a procedurally defaulted constitutional claim in a petition for habeas corpus absent a showing of cause and prejudice to excuse the default, ” or by showing petitioner was “actually innocent of the underlying offense.”).
Finally, because Petitioner is pro se, the court must liberally construe his petition and interpret it “to raise the strongest arguments that [it] suggest[s].” Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal citation omitted).
DISCUSSION
I. Petitioner's Claims Based Upon Ineffective Assistance Of Trial Counsel Should Be Denied
Petitioner argues that his trial counsel, two attorneys from the Legal Aid Society, were ineffective because (1) they did not seek a hearing concerning Petitioner's competency to stand trial, and (2) they failed to investigate his allegations regarding CDI Schrader. (See Pet. at 5-6, 21-22.) Petitioner is not entitled to habeas relief based upon either of these arguments.
First, with respect to competency, Petitioner met numerous times with the defense's forensic psychiatrist, Dr. Steinberg, who raised no issues regarding Petitioner's competency. Thereafter, trial counsel made the strategic decision to assert an EED defense, and not to seek a competency hearing to pursue an insanity defense. “[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable[.]” Strickland, 466 U.S. at 690. Petitioner has offered no evidence supporting a viable insanity defense and thus provides no basis upon which this Court can find that he suffered prejudice due to his counsel's failure to request a competency hearing. Considering the “totality of the evidence before the judge and jury, ” id. at 695, the question of whether there was a reasonable probability that Petitioner would have been found incompetent at the time of the offense must be answered in the negative.
Petitioner argues that his IQ is “so low that he would be deemed by the educational field to be suffering from mental retardation.” (See Pet. at 27.) However, he offers no viable proof in support of this argument. Moreover, Dr. Steinberg, Petitioner's forensic psychiatrist, testified that Petitioner “didn't have global cognitive deficits” and “did not have profound mental retardation.” (Tr. 1108.)
Second, with respect to CDI Schrader, Petitioner has not shown that Justice Ward's decision denying Petitioner's CPL § 440.10 motion 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)(2), particularly given the double deference that such decision is due. As Justice Ward noted (see Pet. Ex. G at 190-91), there was no evidence that Petitioner ever had filed a police report against CDI Schrader, as Petitioner alleged. Further, even assuming, arguendo, that CDI Schrader had molested Petitioner, as Petitioner alleges, Petitioner's claim that CDI Schrader was “making [Petitioner] look like a liar” does not hold up. As Respondent explains in his opposition, and as Petitioner fails to rebut in his reply, a certified deaf interpreter “works alongside an ASL interpreter, assisting the deaf person in understanding the ASL interpreter's signs, ” but not the other way around. (Resp.'s Mem. at 61.) Thus, here, while CDI Schrader “would have assisted [P]etitioner in understanding the ASL interpreter's signs, . . . the ASL interpreter would not have relied on [CDI] Schrader for help in interpreting [P]etitioner's signs, ” and, therefore, CDI Schrader “would not have been in a position to misrepresent [P]etitioner's signs” in order to make him “look like a liar.” (Id.) Finally, the Court notes that CDI Schrader only performed translation services during pretrial proceedings, so he could not have impacted Petitioner's ability to understand or be understood during the trial itself. The Court thus concludes that Petitioner suffered no prejudice as a result of his trial counsel's failure to investigate CDI Schrader.
Petitioner's request for habeas relief on the ground of ineffective assistance of trial counsel therefore should be denied.
II. Petitioner's Claims Based Upon Ineffective Assistance of Appellate Counsel Should Be Denied
Petitioner asserts that his appellate counsel was ineffective because they failed to argue that his trial lawyers provided ineffective assistance by not seeking a hearing as to his competency and by not investigating CDI Schrader. (See Pet. at 8-9, 23.) However, Petitioner has not overcome the “strong presumption” that appellate counsel acted within the “wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Appellate counsel is free to choose strategically among viable claims to maximize the likelihood of success. See Smith v. Murray, 477 U.S. 527, 536 (1986) (“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.” (cleaned up)).
Here, appellate counsel chose to raise two issues on direct appeal: (1) the prosecutor's summation remarks warranted reversal because they misstated the law of EED, denigrated the defense of EED and prevented the jurors from fairly considering the Petitioner's EED defense; and (2) that the court should reduce his sentence to the legal minimum of fifteen years to life on the basis that his sentence was excessive. (See Pet. Ex. A at 97-109.) The ineffective trial counsel arguments that Petitioner asserts should have been raised are not “clearly stronger” than the issues that were raised because, among other reasons, Petitioner's arguments are meritless. See Smith v. Robbins, 528 U.S. 259, 288 (2000) (quoting Gray v. Greer, 800 F.2d 644, 646 (7th Cir. 1986) (“Generally, only when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome.”)). Accordingly, Petitioner fails to demonstrate that his appellate counsel's performance was deficient.
See Discussion Section I, supra. Petitioner's ineffective appellate counsel claim also fails under Strickland's second prong because Petitioner's ineffective trial counsel arguments are meritless. There is no reasonable probability that raising the ineffective trial counsel claim would have resulted in a different outcome on appeal. See Aparicio v. Artuz, 269 F.3d 78, 100 (2d Cir. 2001) (“[P]etitioner's appellate counsel was not ineffective for failing to raise the meritless argument.”).
III. Petitioner's Claims Based Upon Alleged Trial Court Errors Should Be Denied
Petitioner argues that the trial court erred by failing (1) to order a competency hearing for Petitioner, and (2) to develop the record concerning Petitioner's allegations of misconduct committed by one of the court-provided interpreters. (See Pet. 6-9, 14-15, 20-23, 26-29.) These arguments are considered in turn.
A. Claim Regarding Competency Hearing
“The constitutional right to due process is violated when a person who is incompetent is convicted of a crime, whether the conviction follows a trial or a plea of guilty.” Harris v. Kuhlmann, 346 F.3d 330, 349 (2d Cir. 2003) (citing, among other cases, Cooper v. Oklahoma, 517 U.S. 348, 354 (1996)). “As the Supreme Court explained in Cooper, ‘[a] defendant may not be put to trial unless he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and a rational as well as factual understanding of the proceedings against him.” Id. at 349-50 (quoting Cooper, 517 U.S. at 354). “Moreover, ‘the right not to stand trial while incompetent is sufficiently important to merit protection even if the defendant has failed to make a timely request for a competency determination.'” Id. (quoting Cooper, 517 U.S. at 354 n.4).
On habeas review, the federal court “must presume the state court's findings of fact are correct, unless the petitioner meets the burden of rebutting this presumption of correctness by clear and convincing evidence.” Harris, 346 F.3d at 350 (quoting LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir. 2002) (cleaned up). “Furthermore, a petitioner is not entitled to habeas relief unless the state court applied the ‘clearly established Federal law, as determined by the Supreme Court' to the facts of the petitioner's case in an ‘objectively unreasonable manner.'” Id. (citing 28 U.S.C. § 2254(d)(1)).
In the present case, Justice Ward, who presided over the trial, found that “multiple doctors interviewed [Lithgow] and had no difficulty in communicating with [him].” (See Pet. Ex. G at 190.) She also found that there was no evidence to support Petitioner's purported lack of competence other than his own self-serving affidavit. (See id.) On the record before the Court, Petitioner has failed to come forth with the requisite clear and convincing evidence, and it cannot be said that Justice Ward applied the applicable law in an objectively unreasonable manner. Thus, Petitioner's claim regarding the trial court's failure to order a competency hearing should be denied.
B. Claim Regarding CDI Schrader
Petitioner argues that the state trial court erred by failing to sua sponte develop the record concerning Petitioner's allegations of misconduct committed by CDI Schrader. (See Pet. at 23, 43-45.) Petitioner raised this argument for the first time in his habeas Petition. In the state court, Petitioner argued in his CPL § 440.10 motion that he received ineffective assistance of trial counsel because his counsel did not investigate CDI Schrader. (See Pet. Ex. D at 135-36.) However, he never argued in the state courts that Justice Ward sua sponte should have developed the record regarding CDI Schrader, as he does for the first time in this Court. Since Petitioner failed to exhaust his claim regarding CDI Schrader in the state courts, it is procedurally defaulted. See Richardson, 621 F.3d at 201. Moreover, since Petitioner has not shown cause excusing the default, and since there is overwhelming evidence of Petitioner's guilt, such that he cannot show actual innocence, his procedurally-defaulted claim regarding CDI Schrader should not be entertained by this Court. See Dretke, 541 U.S. at 388.
Even if Petitioner's claim regarding Justice Ward's failure to investigate his allegations about CDI Schrader were not procedurally defaulted, it is not cognizable. Federal habeas review is available for a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). Petitioner has not alleged any Constitutional or federal law violation in respect of Justice Ward's failure to investigate allegations regarding CDI Schrader. Finally, even if this claim were neither procedurally defaulted nor incognizable, and Justice Ward somehow did err in failing to investigate CDI Schrader, such error was harmless, given that, as addressed in Discussion Section I above, Petitioner's allegations concerning CDI Schrader are meritless on multiple fronts.
CONCLUSION
For the foregoing reasons, I respectfully recommend that the Petition be denied in its entirety.
The Clerk of Court is respectfully directed to mail a copy of this Report and Recommendation to Petitioner.
SO ORDERED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Nathan.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).