Opinion
9:99-CV-2182 (GLS).
February 25, 2004
OFFICE OF FRANCIS A. ALOI, FRANCIS A. ALOI, ESQ. Rochester, NY, for the Petitioner.
HON. ELIOT SPITZER, Office of Attorney General, PATRICK MACRAE, ESQ., Assistant Atty. General, State of New York, Syracuse, NY, for the Respondent.
DECISION and ORDER
I. Background A. State Court Proceedings
According to the testimony adduced at trial, on August 15, 1991, petitioner Lee Longtin allowed a police informant, Thomas Bangerter, into his home in Tompkins County, New York. See Transcript of Trial of Lee Longtin (11/2/92) ("Trial Tr.") at PP. 463-65. They proceeded upstairs, after which Longtin produced a bag of what subsequently proved to be cocaine, weighed out approximately one-half ounce of the substance on a scale, and placed that amount in a small plastic bag ( Trial Tr. at PP. 469-70, 640-42). In exchange for that cocaine, Bangerter gave Longtin $1,000.00, $800.00 of which was payment for the cocaine Bangerter had just received, with the remaining $200.00 attributable to money he previously owed Longtin ( Trial Tr. at PP. 466-67, 470-71). On August 30, 1991, Bangerter again went to Longtin's home and purchased an additional quantity of cocaine from him ( Trial Tr. at PP. 473-74, 652-53).
The evidence also established that on September 26, 1991, during the course of several telephone calls, Longtin agreed to purchase 250 grams of cocaine from Robert Muniz for $7,000 ( Trial Tr. at PP. 749-50; Respondent's Appendix on Appeal ("R.App.") at PP. RA 14-19; see also, People v. Longtin, 245 A.D.2d 807, 807-08 (3d Dept. 1997). The following morning, Daryl Hallock and Richard Lucas, both of whom had previously traveled to New York City for the purpose of purchasing cocaine for Longtin ( Trial Tr. at PP. 178-79), met with him ( Trial Tr. at PP. 180-81). After that meeting, Lucas and Hallock drove to meet with Muniz at his girlfriend's apartment in New York City ( Trial Tr. at PP. 180-83, 247-50). While in that apartment, Hallock and Muniz went into a bedroom while Lucas remained outside ( Trial Tr. at PP. 187-88). Shortly thereafter, Hallock and Lucas drove back to Longtin's residence and entered his home ( Trial Tr. at P. 192). After receiving $500.00 from Longtin, Lucas left the residence ( Trial Tr. at PP. 197-98). Shortly thereafter, the police executed a no-knock search warrant at Longtin's home ( Trial Tr. at P. 396). While executing that warrant, the police found several bags of what subsequently proved to be cocaine in Longtin's bedroom ( Trial Tr. at PP. 559, 678-79). Additionally, the police discovered two electronic scales, a substance used to "cut" cocaine as well as a quantity of marijuana ( Trial Tr. at PP. 559-65, 682-87). Longtin was placed under arrest and thereafter advised of his Miranda rights ( Trial Tr. at PP. 753-54). Thereafter, in a brief conversation with Leslie Hyman, an Investigator with the New York State Police, Longtin volunteered: "You know what you are going to find" ( Trial Tr. at P. 755). When Investigator Hyman said "drugs," Longtin responded "Yup" ( Id.).
The police had previously obtained an authorization to wiretap Longtin's telephone. See Record on Appeal ("Record") at PP. 1209-15.
Sometime after entering Longtin's apartment, Lucas noticed that a red bag which had been in the back seat of the car that he and Hallock had used to travel to New York City had been brought into Longtin's home ( Trial Tr. at PP. 191-93).
Miranda v. Arizona, 384 U.S. 436 (1966).
On October 15, 1991, a Tompkins County grand jury charged Longtin with second degree criminal conspiracy, first degree criminal possession of a controlled substance ("CPCS") (two counts), second degree criminal possession of marijuana, second degree criminal use of drug paraphernalia (three counts), and third degree criminal sale of a controlled substance ("CSCS") (two counts) ( Record at PP. 9-17). On November 2, 1992, a jury trial commenced with Tompkins County Court Judge William C. Barrett, presiding.
During jury selection, Longtin's counsel notified Judge Barrett that he had just become aware that Investigator Robert Lishansky of the New York State Police had been suspended from his duties for falsifying fingerprint evidence in criminal investigations ( Trial Tr. at PP. 118-20). Since Lishansky allegedly found one of Longtin's fingerprints on packaging material used for drugs in the prosecution's case against Longtin, the District Attorney advised Judge Barrett and defense counsel that the prosecution: i) would not call Lishansky as a witness; and, ii) would not refer to any fingerprint evidence in its case against Longtin ( Trial Tr. at PP. 120, 141).
Longtin's fingerprint was alleged to have been found on a plastic bag seized by the police on September 27, 1991 ( Trial Tr. at PP. 136-37).
Lishansky had been on the prosecution's list of proposed witnesses ( Trial Tr. at P. 120).
At the conclusion of the trial, Longtin was found guilty of all charges ( Trial Tr. at PP. 1012-20). On January 7, 1997, he was sentenced by Judge Barrett to terms of imprisonment of fifteen years to life regarding the first degree CPCS convictions, with lesser, concurrent terms on the criminal conspiracy, criminal use of drug paraphernalia, and criminal possession of marijuana convictions ( Record at PP. 1322-23). Judge Barrett also sentenced Longtin to terms of imprisonment of one to three years for each of his two convictions for third degree CSCS ( Record at PP. 1323-24). Those sentences were to run consecutive to each other and consecutive to the other sentences imposed on Longtin ( Record at P. 1324).
Longtin appealed his convictions and sentences to the New York State Supreme Court, Appellate Division, Third Department, which affirmed. Longtin, 245 A.D.2d at 810-11. The Court of Appeals granted Longtin's application for leave to appeal to that court, see People v. Longtin, 91 N.Y.2d 943 (1998), and subsequently affirmed the convictions and sentences. People v. Longtin, 92 N.Y.2d 640 (1998). The United States Supreme Court denied Longtin's application for certiorari review. Longtin v. New York, 526 U.S. 1114 (1999).
On January 7, 2000, Longtin filed a motion to vacate his conviction pursuant to New York Criminal Procedure Law ("CPL"), § 440.10. That application was opposed by the District Attorney's Office and denied by Judge Barrett in a Decision and Order dated April 5, 2000. See People v. Longtin, No. 99-055 (Tompkins Cty. Ct., Apr. 5, 2000) ("April 2000, Decision"). The Appellate Division denied Longtin's application for leave to appeal that decision in its order dated June 2, 2000. See People v. Longtin, No. 11981, slip op. at P. 1 (3d Dept. 2000). B. This Proceeding
Longtin filed his habeas petition pursuant to 28 U.S.C. § 2254 in this District on December 17, 1999. See Pet. In that application, Longtin claims that: i) Lishansky's misconduct deprived Longtin of his right to a fair trial; ii) his attorney labored under a conflict of interest at the time he represented Longtin; iii) the state courts failed to properly investigate and adjudicate Longtin's Brady claim; iv) he received ineffective assistance due to trial counsel's failure to call Lishansky or David Harding, another New York State Police Investigator accused of evidence tampering, as defense witnesses; v) his counsel rendered ineffective assistance with respect to pretrial motions submitted on his behalf; vi) trial counsel rendered ineffective assistance by failing to argue that the testimony of a prosecution witness was uncorroborated; vii) there was insufficient evidence to establish his conviction on the conspiracy charges; viii) the prosecutor engaged in misconduct and, ix) there was insufficient evidence adduced at trial to support his convictions on any of the charges. See Pet.
Brady v. Maryland, 373 U.S. 83 (1963).
Included within this ground is a claim that his trial attorney rendered ineffective assistance by failing to object to the prosecution's misconduct ( Pet., Ground Eight).
On July 5, 2000, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum of law in opposition to the petition ( Dkt. Nos. 7-8).
On August 17, 2000, Longtin's counsel filed a reply affirmation in further support of the petition ( Dkt. No. 10).
II. Discussion A. Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may not grant habeas relief to a state prisoner on a 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); see also, Miranda v. Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001). The AEDPA also requires that in any federal habeas corpus proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted). In interpreting the AEDPA, the Second Circuit has noted:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)). A state court's decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). Moreover, a federal court is not to consider whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable." Williams, 529 U.S. at 409; see also, Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001); Valtin v. Hollins, 248 F. Supp.2d 311, 314 (S.D.N.Y. 2003). The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error," though "the increment need not be great[.]" Francis S., 221 F.3d at 111.
B. Substance of Petition 1. Misconduct of Lishansky
In his first ground, Longtin argues that Lishansky's actions in gathering evidence against him "resulted in a prosecution tainted by corruption in its inception," and deprived Longtin of his right to a fair trial ( Pet. at Ground One). Specifically, Longtin claims that Lishansky "provided key evidence against petitioner," and that his involvement "went to the genesis of the charges against" him ( Pet. at (attached) PP. 1-3). Longtin argues that "but for [Lishansky's] false analysis, reports, and testimony, [Longtin] might never have been indicted" ( Pet. at (attached) P. 4), and concludes that the trial court's failure to "explore the extent of the corruption in this prosecution" deprived Longtin of his right to a fair trial ( Pet. at (attached) P. 4). i. Clearly Established Supreme Court Precedent
A criminal defendant's right to a fair trial is mandated by the United States Constitution. Albright v. Oliver, 510 U.S. 266, 273 N.6 (1994) (citing United States v. Agurs, 427 U.S. 97, 107 (1976)); see also, United States v. Alvarez-Machain, 504 U.S. 655, 661-62 (1992) (due process of law is satisfied "when one present in court is convicted of crime after having been fairly apprised of the charges against him and after a fair trial in accordance with constitutional procedural safeguards") (citation omitted). However, the mere preparation of false evidence, as opposed to its use in a fashion that deprives someone of a fair trial, does not violate the Constitution. Buckley v. Fitzsimmons, 509 U.S. 259, 281-82 (1993) (Scalia, J., concurring) (citation omitted).
ii. Contrary To, or Unreasonable Application of, Supreme Court Precedent
Longtin's claim that he was deprived of his right to a fair trial due to Lishansky's involvement in the case was raised by him in both his direct appeal and in his CPL § 440 motion. See Appellate Brief (7/1/97) ("App. Br.") at PP. 5-12; CPL § 440 Motion at PP. 5-7. Those claims were denied by the Appellate Division, see Longtin, 245 A.D.2d at 809-10, and Judge Barrett. April 2000, Decision at P. 1, respectively. Therefore, this court must determine whether those decisions are contrary to, or an unreasonable application of, the above-referenced Supreme Court precedent.
In his petition, Longtin vociferously argues that Lishansky's misconduct permeated the criminal proceedings below. In support of his claim that Lishansky played a significant role in effectuating his arrest and obtaining an indictment against him, Longtin has provided the court with a copy of the plea allocution of Lishansky wherein he pleaded guilty to various charges of evidence tampering ( Pet. at (attached) PP. A8-10). In that colloquy, Lishansky admitted that the fingerprint evidence of Longtin was "critical" to both the arrest of Longtin and the proof submitted before the grand jury to secure an indictment against him ( Pet. at (attached) P. A9).
However, at Longtin's trial after reviewing the grand jury minutes, Judge Barrett found that: i) Lishansky was not a witness before the grand jury that indicted Longtin; and, ii) the fingerprint evidence that Lishansky apparently fabricated was not utilized by the District Attorney in securing the indictment ( Trial Tr. at P. 139). Additionally, the testimony adduced at trial established that Longtin was arrested on September 27, 1991 ( Trial Tr. at P. 750), and the packaging material in which the narcotics had been stored was sent to the laboratory at which Lishansky worked sometime after that evidence had been seized from Longtin's home ( Trial Tr. at PP. 140-41; 595, 597). Moreover, the Court of Appeals noted that it was "uncontroverted" that Lishansky: i) had no contact with the narcotics that were subsequently used as evidence against Longtin; ii) was not present during the monitoring of Longtin's telephone calls which resulted in the wiretap evidence presented against him; and, iii) was not present during the search of Longtin's home which resulted in the seizure of the cocaine, marijuana and drug paraphernalia. See Longtin, 92 N.Y.2d at 645.
Determinations of factual issues made by a state court "shall be presumed to be correct," and a petitioner is required to rebut this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Mask v. McGinnis, 233 F.3d 132, 139 (2d Cir. 2000). "The touchstone for a reasonable determination under § 2254(e)(1) is whether the determination is at least minimally consistent with the facts and circumstances of the case." Dawson v. Donnelly, 111 F. Supp.2d 239, 245 (W.D.N.Y. 2000) (citations and internal quotations omitted).
In this case, although Longtin has presented some evidence that Lishansky may have played a more active role in the arrest and indictment of him than that which was discussed in the state court record, he has not rebutted, by clear and convincing evidence, Judge Barrett's factual finding that evidence which Lishansky may have fabricated was not used to secure the indictment against him. Additionally, Lishansky's admission in his guilty plea that evidence which he falsified was critical to arresting Longtin was squarely contradicted by the evidence adduced at Longtin's trial regarding the timing of his arrest and Lishansky's involvement in the case.
The grand jury returned the indictment against Longtin on October 15, 1991 ( Record at P. 9). Lishansky did not prepare the false fingerprint report regarding Longtin until the following month ( Mem. in Opp. to CPL § 440 Motion (3/3/2000) at P. 12). Thus, Lishansky's conduct did not occur until after the relevant grand jury proceeding.
In sum, Longtin has failed to establish that Lishansky's involvement in the criminal case against him, which the Court of Appeals expressly found to be minimal, Longtin, 92 N.Y.2d at 645, deprived him of his right to a fair trial. Therefore, he has necessarily failed to demonstrate that the denial of these claims when raised by him in the state courts is either contrary to, or an unreasonable application of, relevant Supreme Court precedent. Therefore, his first ground for relief is denied. 2. Ineffective Assistance
Several of Longtin's claims allege that he received ineffective assistance of trial counsel. Specifically, Longtin argues that he received ineffective assistance because his trial attorney: a) labored under a conflict of interest at the time he represented Longtin ( Pet., Ground Two); b) failed to call Lishansky or Harding as defense witnesses ( Pet., Ground Four); c) failed to adequately prepare and pursue pretrial motions ( Pet., Ground Five); d) neglected to challenge the prosecution's failure to corroborate the testimony of one of its witnesses ( Pet., Ground Six); and, e) did not object to the prosecution's "repeated Ventimiglia violations" ( Pet., Ground Eight).
People v. Ventimiglia, 52 N.Y.2d 350 (1981).
i. Clearly Established Supreme Court Precedent
The Sixth Amendment to the United States Constitution provides that: "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const., Amend. VI. To establish a violation of this right to the effective assistance of counsel, a habeas petitioner must show both: a) that counsel's representation fell below an objective standard of reasonableness, measured in the light of the prevailing professional norms; and, b) resulting prejudice that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 688-90 (1984); Wiggins v. Smith, ___ U.S. ___, 123 S.Ct. 2527, 2535 (2003) ("the legal principles that govern claims of ineffective assistance of counsel" were set forth in Strickland). However, where a party establishes that his defense counsel labored under an actual conflict of interest, he need only demonstrate that the actual conflict "adversely affected his lawyer's performance" in order to prove a violation of his Sixth Amendment right to effective counsel. Cuyler v. Sullivan, 446 U.S. 335, 348-50 (1980).
In Williams, the Supreme Court declared that "the rule set forth in Strickland qualifies as "clearly established Federal law[.]" Williams, 529 U.S. at 391.
ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent
The Court of Appeals rejected Longtin's claim that his trial counsel was ineffective because he suffered from a conflict of interest. Longtin, 92 N.Y.2d at 644-45. The remaining ineffectiveness claims raised by Longtin in this action were asserted in his CPL § 440 motion ( CPL § 440 motion at PP. 14-17; 23-27; 28-30). That application was denied by Judge Barrett ( April 2000, Decision at P. 1). These findings are therefore entitled to deference under the AEDPA.
a. Claimed Conflict of Interest
The Second Circuit has noted that there are three levels of conflicts of interest to be considered in evaluating a Sixth Amendment claim alleging such a conflict: 1) a per se conflict, which does not require a showing of prejudice; 2) an actual conflict of interest that carries a presumption of prejudice; and, 3) a potential conflict of interest that requires a finding of both deficient performance by counsel and prejudice. See United States v. John Doe No. 1, 272 F.3d 116, 125 (2d Cir. 2001) (citation omitted), cert. denied sub nom. Findley v. United States, 537 U.S. 851 (2002); see also, Casso v. United States, 00-CV-6973, 2001 WL 1517537, at *2 (E.D.N.Y. Nov. 20, 2001) (citing John Doe).
Per se conflicts of interest exist only where trial counsel is not authorized to practice law, see Solina v. United States, 709 F.2d 160, 164 (2d Cir. 1983), or he is implicated in the very crime for which his client is on trial, see United States v. Cancilla, 725 F.2d 867, 870 (2d Cir. 1984). Since Longtin has not established the existence of either of these two limited circumstances, no per se conflict of interest existed.
The Second Circuit has consistently refused to extend the per se rule beyond these two limited situations. See United States v. Rondon, 204 F.3d 376, 379-80 (2d Cir. 2000) (collecting cases).
Next, in order to prove that his attorney suffered from an actual conflict of interest during the course of his representation, Longtin must demonstrate the existence of three distinct elements. See United States v. Berger, 188 F. Supp.2d 307, 333 (S.D.N.Y. 2002) (citing United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000)). First, he must establish that an "actual conflict of interest" existed, i.e., that "the attorney's and defendant's interests diverge[d] with respect to a material factual or legal issue or to a course of action." Berger, 188 F. Supp.2d at 333 (citing Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993)). He must then establish that an "actual lapse in representation" resulted from the conflict; this is demonstrated by the existence of some "plausible alternative defense strategy" not pursued by counsel. Berger, 188 F. Supp.2d at 333 (citing Winkler, 7 F.3d at 309). Finally, Longtin must show causation, that the alternative defense strategy was "inherently in conflict with or not undertaken due to the attorney's other loyalties or interests." Armienti v. United States, 234 F.3d 820, 824 (2d Cir. 2000); Berger, 188 F. Supp.2d at 333 (citing Winkler, 7 F.3d at 309) (other citation omitted).
In arguing that his trial counsel had suffered under an actual conflict, Longtin notes that at the time of the representation, his attorney also maintained an attorney-client relationship with Harding, who worked in the same police unit as Lishansky, and who was also found guilty of falsifying evidence in a subsequent criminal proceeding ( Pet. at Ground Two). Longtin argues that due to this relationship, his counsel failed to explore the extent to which Lishansky's misconduct impacted the prosecution's case against him ( Pet. at (attached) PP. 5-6). However, as the Court of Appeals observed, Harding never handled any of the evidence in the District Attorney's case against Longtin and was never mentioned as a potential witness by either side; his only connection to the case was that he served in the same police unit as Lishansky. Longtin, 92 N.Y.2d at 645. Longtin has failed to provide any evidence, in either the state courts or in support of this application, which indicates that the relationship his attorney had with Harding resulted in a divergence of interests between he and Longtin as to any material factual or legal issue, or proposed course of action. Nor is there any evidence that his attorney failed to pursue a plausible alternative defense strategy because of the claimed conflict, or that an alternative defense strategy was either in conflict with or not undertaken by his attorney due to counsel's relationship with Harding. Thus, Longtin has not demonstrated that his attorney labored under an actual conflict of interest.
As discussed more fully below, counsel's failure to call Harding or Lishansky as defense witnesses did not amount to ineffective assistance.
Finally, in considering whether a potential conflict existed between Longtin and his counsel, this court must apply the standard established in Strickland John Doe No. 1, 272 F.3d at 126. Harding's lack of involvement concerning the evidence utilized against Longtin, coupled with Lishansky's minimal connection to the case, demonstrates that "there was virtually no reason to think that the dual representation would give rise to a conflict of interest that would in any way affect [petitioner's] case." United States v. Stantini, 85 F.3d 9, 20 (2d Cir. 1996). Thus, the dual representation on the part of Longtin's counsel was not objectively unreasonable. Moreover, Longtin has not offered any proof which indicates that he was prejudiced, in any way, by counsel's representation of both he and Harding.
In light of the foregoing, the Court of Appeals' decision rejecting this aspect of Longtin's appeal is not contrary to, or an unreasonable application of, the relevant Supreme Court precedent referenced above. Therefore Longtin's second ground for relief must be denied. See Moseley v. Scully, 908 F. Supp. 1120, 1137 (E.D.N.Y. 1995) (citing Strickland), aff'd, 104 F.3d 356 (2d Cir. 1996).
As to Longtin's claim that his counsel suffered from an actual conflict, Longtin has failed to demonstrate that the decision of the Court of Appeals is contrary to, or represents an unreasonable application of, Tueros v. Greiner, 343 F.3d 587 (2d Cir. 2003) ( passim).
b. Failure to Call Harding or Lishansky as Witnesses
Longtin's next theory alleges that his trial attorney rendered ineffective assistance by failing to call either Harding or Lishansky as defense witnesses ( Pet. at Ground Four). Specifically, he alleges that Harding may have been able to "disclose . . . improprieties" regarding evidence tampering, and that Lishansky possessed "relevant information concerning his improprieties and his involvement" in the prosecution of the case against Longtin ( Pet. at (attached) P. 9).
Longtin has wholly failed to establish that it was objectively unreasonable for his attorney to refrain from calling Harding as a witness. As the Court of Appeals noted, "[i]t is undisputed that Harding had no role in building the case against [Longtin]." Longtin, 92 N.Y.2d at 645. Moreover, since no fingerprint evidence was offered against Longtin at his trial, "even Harding's general knowledge of fingerprint processing became irrelevant." Id.
With respect to Lishansky, during the course of the trial, Longtin's counsel informed Judge Barrett and the District Attorney that he had served a subpoena on Lishansky ( Trial Tr. at P. 720). The District Attorney then informed Longtin's counsel that:
Mr. Lishansky's attorney has indicated that if called as a witness, Mr. Lishansky will take the Fifth. And when the time comes, I will want to be heard on whether he does that in front of or outside the presence of the jury.Trial Tr. at P. 721. Judge Barrett then advised the parties that Longtin's counsel:
The District Attorney also noted that he had been advised by Longtin's counsel that he intended to present evidence of police misconduct regarding fingerprint evidence ( Trial Tr. at P. 721). Since the prosecution had not offered any fingerprint evidence against Longtin, and Lishansky would not testify at Longtin's trial, the District Attorney noted that Longtin would be unable to establish that the fingerprint evidence was, in fact, false ( Trial Tr. at P. 722).
[C]ould bring [Lishansky] in, have him sit down in the absence of the jury and tell us he is going to take the Fifth Amendment. I have no doubt he will take the Fifth Amendment. But if you want to do that we can do that. But it seems pointless because the evidence isn't even in the case and I really doubt that he would respond to any questioning based on what I have heard and read about this, and based on my experience in the other case.
Trial Tr. at PP. 724-25.
"The Second Circuit has emphasized that a court 'will practically never second-guess' an attorney's decision to present or withhold a witness. Arkin v. Bennett, 282 F. Supp.2d 24, 38 (S.D.N.Y. 2003) (quoting United States ex rel. Walker v. Henderson, 492 F.2d 1311, 1314 (2d Cir. 1974)); see United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) (decision as to whether to call a witness "fall[s] squarely within the ambit of trial strategy, and, if reasonably made, cannot support an ineffective assistance claim) (internal quotation and citation omitted); Collier v. United States, 92 F. Supp.2d 99, 103 (N.D.N.Y. 2000) (McAvoy, J.) ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial) (citing United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992)) (internal quotation omitted).
Since the evidence established that Lishansky would invoke his constitutional right not to incriminate himself, and Judge Barrett determined that if Longtin were to call Lishansky as a witness, that aspect of the trial would be conducted outside the presence of the jury, defense counsel's tactical decision to refrain from calling Lishansky as a witness was not objectively unreasonable. Moreover, since the only evidence before the court establishes that Lishansky would not testify if called as a witness, it is sheer speculation that he would offer relevant information which would have assisted Longtin in defending himself against the charges. Courts cannot grant habeas relief based upon unsubstantiated conclusions, opinions or speculation. Wood v. Bartholomew, 516 U.S. 1, 8 (1995) (federal courts should not grant "habeas relief on the basis of little more than speculation with slight support"); Jones v. O'Keefe, 99 Civ. 12279, 2000 WL 1290595, at *5 (S.D.N.Y. Sept. 12, 2000) (citations omitted); Osinoiki v. Riley, CV 90-2097, 1990 WL 152540, at *3 (E.D.N.Y. Sept. 28, 1990) (denying petition for writ of habeas corpus requesting bail, where, inter alia, two of petitioner's bases for relief were based on "nothing more than rank speculation").
Longtin did not present, in either the state courts or this action, affidavits from either Harding or Lishansky which support Longtin's claims that either of these individuals would have provided useful information for Longtin's defense.
Since Longtin has not established that Judge Barrett's denial of this aspect of the CPL § 440 motion is contrary to, or an unreasonable application of, Strickland, he is not entitled to habeas relief on this theory.
c. Inadequate Pretrial Preparation
Longtin contends that his counsel was ineffective because his omnibus motion was not timely filed, his discovery demands were late, and his suppression motion was "not noticed, apparently was not heard, and may have been withdrawn" ( Pet. at Ground Five). Longtin also faults his counsel for failing to object to the admission into evidence of the recordings made of the wiretapped telephone calls ( Id.).
Even assuming, arguendo, that Longtin's omnibus motion was belatedly filed or that the discovery demands served on the prosecution were untimely, Longtin has not provided any evidence which demonstrates that he was prejudiced, in any way, due to the time at which those requests were served on the prosecution. Specifically, he has not cited any ruling of Judge Barrett which indicates that any pretrial request or demand served on the District Attorney was denied because the request was not timely made. As to Longtin's claims regarding the suppression motion made by counsel, the court notes that Judge Barrett conducted a suppression hearing regarding that application on January 10, 1992 ( Record at PP. 1112-80). After that hearing, the suppression motion was denied in all respects ( Record at P. 1190). Thus, Longtin's argument that the suppression motion was "apparently never heard, and may . . . have been withdrawn" ( Pet. at (attached) P. 11), appears to be belied by the record. Finally, although Longtin correctly notes that during the course of the trial, his attorney did not object to the admission into evidence of either the audiotapes made of the wiretapped telephone conversations or the transcripts generated as a result of those recordings ( Pet. at (attached) P. 11), Longtin appears to overlook the fact that his counsel specifically advised the court and the District Attorney that he had no objection to that evidence being admitted into trial ( Trial Tr. at PP. 715-16). That decision may well have been attributable, at least in part, to the fact that an earlier request to suppress that evidence had been denied by Judge Barrett ( Record at PP. 1191-93).
The omnibus motion was dated November 29, 1991, and is reproduced in the Record at PP. 1059-81; see also, Record at PP. 1087-95 (Demand for Bill of Particulars dated December 28, 1991).
In light of the foregoing, Longtin has failed to establish that the County Court's decision denying this aspect of his CPL § 440 motion is either contrary to, or represents an unreasonable application of, Strickland d. Lack of Corroboration of Witness Testimony
Longtin next contends that his attorney rendered ineffective assistance because he failed to argue that Lucas' testimony was not corroborated, a statutory requirement in New York ( Pet. at Ground Six). Since that evidence was used to implicate Longtin in the cocaine purchase involving Muniz on September 27, 1991, Longtin contends that his counsel was ineffective in failing to argue that Lucas' testimony was uncorroborated ( Petition at (attached) PP. 11-12).
"There is no federal constitutional rule requiring the corroboration of accomplice testimony. Brooks v. Artuz, 97 CIV. 3300, 2000 WL 1532918, at *7 (S.D.N.Y. Oct. 17, 2000) (citing Caminetti v. United States, 242 U.S. 470, 495 (1917) ("there is no absolute rule of law preventing convictions on the testimony of accomplices if juries believe them")). Thus, lack of corroboration of Lucas' testimony could not form an independent basis for relief in this action.
In New York, corroborative evidence of an accomplice's testimony "must be independent of, and may not draw its weight and probative value from the accomplice's testimony." People v. Steinberg, 79 N.Y.2d 673, 683 (1992); People v. Moses, 63 N.Y.2d 299, 306 (1984). However, CPL § 60.22(1) merely requires that the corroborative evidence "connect the defendant with the commission of the crime to be proven, not to prove [he] committed it." People v. Smith, 55 N.Y.2d 945, 946 (1982); see also, Steinberg, 79 N.Y.2d at 683; People v. Cunningham, 48 N.Y.2d 938, 940 (1979).
The physical evidence obtained from Longtin's apartment pursuant to the search warrant, including the seized drugs and related paraphernalia, corroborated Lucas' testimony. E.g. People v. McIntyre, 277 A.D.2d 1000 (4th Dept. 2000), leave denied, 96 N.Y.2d 736 (2001); People v. Huynh, 223 A.D.2d 463 (1st Dept. 1996), leave denied, 88 N.Y.2d 849 (1996); People v. Rivers, 169 A.D.2d 883, 884-85, leave denied, 77 N.Y.2d 999 (1991). Moreover, the recordings of the wiretapped phone calls, including the conversation recorded on September 26, 1991, wherein Longtin agreed to purchase 250 grams of cocaine from Robert Muniz for $7,000, see Trial Tr. at PP. 749-50; R.App. at PP. RA 14-19, clearly provided sufficient corroboration regarding Lucas' testimony. See People v. Besser, 96 N.Y.2d 136, 146 (2001); People v. Jewsbury, 115 A.D.2d 341, 342 (4th Dept. 1985) (corroboration of accomplice testimony was "amply provided for by the taped telephone conversations obtained pursuant to a legal wiretap of defendant's telephone").
Since the denial of this aspect of Longtin's CPL § 440 motion is neither contrary to, nor an unreasonable application of, Strickland, he is not entitled to habeas relief on this theory.
e. Failure to Object to Alleged Ventimiglia Violations
The final theory offered by Longtin in support of this claim alleges that counsel rendered ineffective assistance by failing to object to the prosecution's "repeated Ventimiglia violations" ( Pet. at Ground Eight). This claim was raised by Longtin both in his direct appeal ( App. Br. at PP. 20-21), and his collateral challenge to his conviction ( CPL § 440 motion at PP. 28-30). The Appellate Division found the claim to be without merit, Longtin, 245 A.D.2d at 810, and Judge Barrett denied the CPL § 440 motion because the issue had already been addressed on appeal ( April 2000, Decision at P. 1).
Longtin argues that the prosecution's Ventimiglia violations "were repeated and egregious" ( Pet. at (attached) P. 13). In support of this theory, Longtin references four instances during the course of the trial when he claims that improper evidence which was "extremely prejudicial" to him was introduced against him.
Longtin's argument that the claimed Ventimiglia violations deprived him of his right to a fair trial are addressed in Section II(b)(5) of this Decision and Order.
The record reveals that Longtin's counsel objected to the majority of the Ventimiglia violations cited by Longtin. Thus, when Lucas testified that he had received marijuana from Longtin on a date not charged in the indictment, counsel objected to the testimony ( Trial Tr. at PP. 198-99). Judge Barrett sustained the objection, struck the testimony and instructed the jury to disregard it ( Trial Tr. at PP. 202-03). When the next Ventimiglia violation cited by Longtin occurred, counsel noted his "vigorous object[ion]" to the proposed evidence ( Trial Tr. at P. 357). That objection was sustained by Judge Barrett ( Trial Tr. at PP. 360-61). The third Ventimiglia violation cited by Longtin occurred during the playback of a recording of a wiretapped telephone call ( Trial Tr. at P. 800). Counsel moved for a mistrial in light of the violation, however, that application was denied by Judge Barrett ( Trial Tr. at PP. 801-05). Longtin's counsel did not object to the next violation cited by Longtin, which occurred when Lucas testified that, upon entering Longtin's apartment on September 27, 1991, Lucas observed several lines of cocaine that had been placed on a coffee table ( Trial Tr. at P. 197). The final Ventimiglia violation cited by Longtin related to the playback of a tape recording of a wiretapped call. During that conversation, Longtin appeared to complain to Muniz that he had received poor quality cocaine from Muniz on a date not charged in the indictment ( Trial Tr. at PP. 738-39; see also, R.App. at P. RA10). Counsel objected to the admission of the tape as having been improperly obtained in light of 18 U.S.C. § 2516, 2518, however, that objection was overruled ( Trial Tr. at PP. 738-39).
As the foregoing demonstrates, Longtin's counsel objected to the majority of the Ventimiglia violations upon which this aspect of Longtin's ineffectiveness claim is based. Those objections establish that counsel's conduct was reasonable in the light of the prevailing professional norms. As to the two instances during which Longtin failed to object to the Ventimiglia violations on the grounds that the evidence was improper in light of Judge Barrett's pretrial ruling, the court finds that, in light of the substantial evidence adduced at trial regarding Longtin's complicity in the charged crimes, he has not established that the outcome of his trial would have been different had counsel lodged timely objections to that evidence.
Longtin has not established that his attorney's failure to move for a mistrial as to each of the claimed Ventimiglia violations ( Pet. at (attached) PP. 13-14) constituted ineffective assistance. See CPL § 280.10(1) (discussing when trial court shall declare a mistrial due to trial error or a "legal defect in the proceedings").
As noted above, one of counsel's objections was not premised upon a claimed Ventimiglia violation but rather the legality of the wiretap.
In sum, the court finds that Longtin has failed to establish that he received ineffective assistance as to any of the theories upon which he relies in his habeas petition. He has therefore a fortiori failed to demonstrate that the decisions of the state courts denying his ineffectiveness claims are either contrary to, or an unreasonable application of, relevant Supreme Court precedent. Therefore, the court denies the second, fourth, fifth and sixth grounds, as well as that aspect of Longtin's eighth ground which alleges ineffective assistance.
3. Brady Claim
In his third ground for relief, Longtin alleges that the state courts wrongfully denied his Brady claim. Specifically, Longtin claims that the prosecution improperly withheld material evidence concerning Lishansky's misconduct ( Pet. at Ground Three). Longtin further contends that the Appellate Division erred in finding that the prosecution was unaware of Lishansky's misconduct "until the eve of trial," Longtin, 245 A.D.2d at 809, and that, as a result, "key factual circumstances surrounding Lishansky's corruption," were never explored by the state courts ( Petition at (attached) P. 8).
The Court of Appeals found Longtin's Brady claim to be "without merit." Longtin, 92 N.Y.2d at 645. Since the rule announced in Brady is clearly established for purposes of the AEDPA, Huber v. Schriver, 140 F. Supp.2d 265, 274 (E.D.N.Y. 2001); Bellezza v. Fischer, 01-CV-1445, 2003 WL 21854749, at *14 (E.D.N.Y. Aug. 6, 2003), this court must determine whether that decision is contrary to, or represents an unreasonable application of, Brady. i. Clearly Established Supreme Court Precedent
Judge Barrett denied this aspect of Longtin's Brady claim because it had already been considered and rejected by the Court of Appeals. See April, 2000 Decision at P. 1; see also § 440.10(2)(a).
In Brady, the Supreme Court held "that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. To prove a Brady violation, a habeas petitioner must establish that: 1) the evidence at issue was favorable to the accused either because it was exculpatory or could have impeached a prosecution witness; 2) the evidence was suppressed by the prosecution either willfully or inadvertently; and, 3) prejudice ensued from the withholding. Moore v. Illinois, 408 U.S. 786, 795 (1972) (citing Brady); see also, Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent
In considering whether a party has established the first element of a Brady claim, the Second Circuit has noted that "[e]vidence is favorable to the accused if it either tends to show the accused is not guilty or impeaches a prosecution witness." Boyette, 246 F.3d at 90 (citing United States v. Bagley, 473 U.S. 667, 674 (1985)); see also, Strickler, 527 U.S. at 281. In light of Lishansky's "minimal connection to the case" against Longtin, Longtin, 92 N.Y.2d at 645, it does not appear that evidence of Lishansky's misconduct was favorable to Longtin in his defense to the charges.
However, even assuming, arguendo, that Longtin has demonstrated this aspect of his Brady claim, the court notes that "as long as a defendant possesses Brady evidence in time for its effective use, the government has not deprived the defendant of due process of law simply because it did not produce the evidence sooner." In re United States ( United States v. Coppa), 267 F.3d 132, 142 (2d Cir. 2001); United States v. Patterson, 02 CR 283, 2002 WL 31890950, at *11 (S.D.N.Y. Dec. 27, 2002) (citing In re United States). Thus, "[t]here is no Brady violation unless there is a reasonable probability that earlier disclosure of the evidence would have produced a different result at trial." In re United States, 267 F.3d at 142 (citing Leka v. Portuondo, 257 F.3d 89, 100 (2d Cir. 2001)). Longtin was made aware of Lishansky's misconduct during jury selection, and counsel subsequently made the strategic decision not to call him as a witness. Therefore, the information regarding Lishansky's misconduct was not "suppressed" in violation of Longtin's rights under Brady. E.g., Ocasio v. Artuz, 98-CV-7925, 2002 WL 1159892, at *3 (E.D.N.Y. May 24, 2002) (no Brady violation where prosecution disclosed evidence "in the middle of trial just before [prosecution witness] took the stand).
Moreover, Longtin's knowledge of Lishansky's misconduct prior to the time at which that information was necessary for its effective use at trial ( Trial Tr. at PP. 118-20) further supports the conclusion that the prosecution did not violate Brady Ienco v. Angarone, 291 F. Supp.2d 755, 761 (N.D.Ill. 2003) (evidence is not "suppressed" for purposes of Brady where defendant is aware of information upon which Brady claim is based) (citation omitted).
Additionally, Longtin has not established that he was prejudiced by the prosecution's conduct. The suppression of exculpatory evidence does not amount to a constitutional violation unless the evidence is material, i.e., if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 682; Boyette, 246 F.3d at 91 (citing Bagley); see also, Cantone v. Superintendent, New York Correctional Facility at Green Haven, 759 F.2d 207, 213 (2d Cir. 1985); Ramirez v. Headley, 98 CIV. 2603, 1998 WL 788782, at *8 (S.D.N.Y. Nov. 10, 1998). In light of the substantial evidence presented against Longtin regarding the criminal charges, and Lishansky's limited involvement in the prosecution's case against Longtin, it is clear that even if the prosecution had provided him with information regarding Lishansky's misconduct at an earlier time, there is no reasonable probability that the result of the trial would have been different.
Since Longtin has not established that his Brady rights were violated by the prosecution, he has necessarily failed to demonstrate that the Court of Appeals' decision denying this aspect of his appeal is either contrary to, or an unreasonable application of, relevant Supreme Court precedent. Therefore, the court denies the third ground in the petition.
Since Longtin was aware of the information regarding Lishansky's misconduct and he has not established prejudice by the timing of that disclosure, it is clear that a more detailed "inquiry" by the state courts regarding the Brady claim ( Pet. at (attached) P. 8) was unnecessary.
4. Insufficiency of Evidence
Longtin asserts two claims based upon the sufficiency of evidence adduced at his trial. In his seventh ground, he claims that there was no overt act proven to establish his guilt concerning the conspiracy conviction ( Pet., Ground Seven). In his ninth ground, he argues that there was insufficient evidence offered at trial to establish his guilt as to any of the remaining charges.
i. Clearly Established Supreme Court Precedent
The Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crimes with which he is charged. See Fiore v. White, 531 U.S. 225, 228-29 (2001); Jackson v. Virginia, 443 U.S. 307, 315 (1979). This inquiry "does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather whether it made a rational decision to convict or acquit." Herrera v. Collins, 506 U.S. 390, 402 (1993). A habeas petitioner claiming that there was insufficient evidence supporting the conviction is entitled to relief under 28 U.S.C. § 2254 only if the court concludes "that upon the record evidence adduced at trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson, 443 U.S. at 324; Schlup v. Delo, 513 U.S. 298, 323 N.38 (1995). The reviewing court is required to consider the evidence in the light most favorable to the prosecution, and draw all inferences in its favor. Jackson, 443 U.S. at 319. ii. Contrary To, or Unreasonable Application of, Supreme Court Precedent
The Jackson standard is clearly established federal law as determined by the Supreme Court. Huber, 140 F. Supp.2d at 276 N.5 (citing Francis S., 221 F.3d at 114) (other citation omitted).
A petitioner bears a "very heavy burden" when seeking to invalidate a conviction based upon a claim of insufficient evidence. Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citing Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993)); see also, Clark v. Irvin, 844 F. Supp. 899, 904 (N.D.N.Y. 1994) (Hurd, M.J.). The appropriate inquiry on habeas review is whether:
the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, [the court] must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.Ferguson v. Walker, 00CIV1356, 2001 WL 869615, at *4 N. 4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.) (quoting United States v. Carson, 702 F.2d 351, 361 (2d Cir. 1983) (citations omitted)) adopted, Ferguson v. Walker, 00Civ. 1356, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002).
A federal habeas court must look to state law to determine the elements of a crime when considering a challenge based upon the sufficiency of evidence. See Jackson, 443 U.S. at 324; Ponnapula, 297 F.3d at 179.
In New York, a person is guilty of first degree CPCS when he knowingly and unlawfully possesses a substance containing a narcotic drug with an aggregate weight of four ounces or more. N.Y. Penal Law § 220.21. Two separate quantities of cocaine, each weighing in excess of four ounces, were found in Longtin's home on the day the search warrant was executed ( Trial Tr. at PP. 677-79). Thus, the evidence established Longtin's guilt of these charges.
Next, a person is guilty of second degree criminal possession of marijuana when he knowingly and unlawfully possesses one or more substances containing marijuana with an aggregate weight of more than sixteen ounces. N.Y. Penal Law § 221.25. Since the evidence established that Longtin possessed substantially more than sixteen ounces of marijuana at the time of his arrest ( Trial Tr. at PP. 682-83), Longtin's challenge to the sufficiency of evidence regarding this conviction is without merit.
Turning to Longtin's convictions for second degree criminal use of drug paraphernalia, the evidence established that Longtin possessed two different scales on the night stand on which both the cocaine and marijuana was located, three boxes of sandwich baggies, and Inositol, a "cutting agent" used with cocaine ( Trial Tr. at PP. 559, 749). This evidence amply supports the jury's determination that Longtin was guilty of three counts of criminal use of drug paraphernalia. See N.Y. Penal Law § 220.50.
Next, a person is guilty of second degree conspiracy when, "with intent that conduct constituting a class A felony be performed, he agrees with one or more persons to engage in or cause the performance of such conduct." N.Y. Penal Law § 105.15. However, a person may not be convicted of conspiracy in New York unless an overt act "is alleged and proved to have been committed by one of the conspirators in furtherance of the conspiracy." N.Y. Penal Law § 105.20; People v. Arroyo, 93 N.Y.2d 990, 991-92 (1999).
The criminal sale of more than one-half ounce of cocaine is a C lass A felony. See N.Y. Penal Law § 220.41.
During one of the wiretapped telephone calls on September 26, 1991, Longtin asked Muniz whether he could get "two-fifty" of the "nice one" for "seventy-five" ( R.App. at P. RA15). Muniz indicated that what Longtin proposed "sound[ed] just about right" ( Id.). When Longtin subsequently asked Muniz whether he could "help [Longtin] out a little bit," Muniz eventually agreed to accept "seven" from Longtin for the cocaine ( R.App. at PP. RA23-24). The next day, after meeting with Longtin, Lucas and Hallock drove to the residence that Longtin had called the previous day regarding the cocaine purchase ( Trial Tr. at PP. 183, 247-50; R.App. at PP. RA23-24). After leaving that apartment, the two drove back to Longtin's residence, and, approximately thirty minutes after their arrival, a significant quantity of drugs were discovered by the police during the execution of the search warrant. ( Trial Tr. at PP. 396-97, 559-65, 678-87). Thus, Longtin's contact with Lucas and Hallock the morning before they drove to New York City and their arrival at his apartment for a meeting with Longtin after their trip to New York City (shortly before the raid on the apartment which revealed the presence of drugs), were overt acts on the part of Longtin upon which the jury could have based its finding that he was guilty of second degree criminal conspiracy.
This represented a request by Longtin to purchase two hundred fifty grams of high quality cocaine ( Trial Tr. at P. 785).
The prosecution argued that this represented an agreed upon purchase price of $7,000 for two hundred fifty grams of cocaine ( Trial Tr. at P. 918). The testimony established that in September 1999, one thousand grams of cocaine had a selling price of between $22,000-$28,000 ( Trial Tr. at P. 295).
These overt acts were both charged in the Indictment ( Record at PP. 9-10).
Finally, the testimony of Bangerter regarding the two separate purchases of cocaine from Longtin ( Trial Tr. at PP. 466-74), established Longtin's guilt of the two counts of third degree CSCS.
In New York, a person is guilty of third degree CSCS when he knowingly and unlawfully sells a narcotic drug. See N.Y. Penal Law § 220.39.
Thus, based upon the evidence adduced at trial, viewed in the light most favorable to the prosecution, the jury's verdict was based upon legally sufficient evidence as to each of the offenses of which Longtin was found guilty. Therefore, Judge Barrett's decision denying this aspect of Longtin's CPL § 440 motion ( April 2000, Order at P. 1) is neither contrary to, nor an unreasonable application of, Jackson and its progeny. Accordingly, Longtin's seventh and ninth grounds for relief are denied.
5. Prosecutorial Misconduct
In his eighth ground, Longtin argues that the prosecution repeatedly violated Judge Barrett's pretrial Ventimiglia ruling, and that such conduct necessitates the granting of his petition ( Pet. at Ground Eight).
i. Clearly Established Supreme Court Precedent
As noted above, a criminal defendant's right to a fair trial is required under the United States Constitution. Albright, 510 U.S. at 273 N.6 (citing Agurs, 427 U.S. at 107). However, for habeas relief to be granted based upon a claim of prosecutorial misconduct, the alleged misconduct must have "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). In considering such a claim, courts are to focus on "the fairness of the trial, not the culpability of the prosecutor." Smith v. Phillips, 455 U.S. 209, 219 (1982). ii. Contrary to, or Unreasonable Application of, Supreme Court Precedent
The law applicable to claims alleging prosecutorial misconduct is clearly established. See Davis v. Keane, 97 CIV. 8328, 2000 WL 1041454, at *7-8 (S.D.N.Y. July 28, 2000) (citing United States v. Young, 470 U.S. 1, 11 (1985) and Donnelly, 416 U.S. at 642-43); see also, Flores v. Keane, 211 F. Supp.2d 426, 438 (S.D.N.Y. 2001).
Longtin raised this claim in his collateral challenge to his conviction. ( CPL § 440 motion at PP. 28-30). Judge Barrett's denial of that claim ( April 2000, Decision at P. 1), is therefore entitled to deference under the AEDPA.
The first instance of prosecutorial misconduct cited by Longtin relates to Lucas' testimony which claimed that Longtin had provided him with marijuana on an occasion not charged in the indictment ( Trial Tr. at PP. 198-99). After defense counsel objected to the testimony, the District Attorney indicated that he had not anticipated that testimony ( Trial Tr. at P. 199). Judge Barrett then struck the testimony from the record and instructed the jury to disregard it ( Trial Tr. at PP. 202-03). Longtin next argues that the District Attorney improperly attempted to offer testimony concerning a statement made by Longtin which indicated that he had previously used poor quality cocaine ( Trial Tr. at P. 356). Judge Barrett did not allow the testimony to be offered in the prosecution's case-in-chief, finding that its probative value was outweighed by the prejudicial impact that it might have had on Longtin ( Trial Tr. at P. 361). The third Ventimiglia violation referenced by Longtin is based upon a woman who identified herself as "Melissa" during a wiretapped telephone call ( R.App. at P. RA25). During that call, Melissa inquired of Longtin whether he could provide her with the name of an individual who could sell her cocaine ( Trial Tr. at P. 800; R.App. at P. RA25). In light of counsel's objection to the proposed evidence, Judge Barrett directed the District Attorney to redact the transcript of the telephone call to eliminate material that might appear to have accused Longtin of committing a crime not charged in the indictment ( Trial Tr. at PP. 803-04). As noted above, Lucas testified without objection that he observed several lines of cocaine in Longtin's apartment on September 27, 1991 ( Trial Tr. at P. 197). The final Ventimiglia violation cited by Longtin related to an audio recording of a telephone conversation involving Longtin during which he appeared to complain to Muniz about cocaine that Longtin believed to be of poor quality ( Trial Tr. at PP. 738-39; see also, R.App. at P. RA10). Judge Barrett overruled counsel's objection to the admission of the tape which was based upon counsel's claim that the recording was obtained in violation of 18 U.S.C. § 2516, 2518 ( Trial Tr. at PP. 738-39).
That witness never testified at Longtin's trial.
In determining whether the prosecution's conduct deprived a criminal defendant of his right to a fair trial, courts must look to the severity of the prosecutor's conduct; the measures, if any, the trial court took to remedy any prejudice; and the certainty of conviction absent the wrongful conduct. Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994); Floyd v. Meachum, 907 F.2d 347, 355 (2d Cir. 1990); Palmer v. Senkowski, 99 CIV. 9634, 2002 WL 54608, at *4 (S.D.N.Y. Jan. 15, 2002) (citations omitted); see also, Darden, 477 U.S. at 181-83; Donnelly, 416 U.S. at 644-47.
Based upon the court's review of the state court record, it is clear that Longtin was not deprived of his right to a fair trial based upon prosecutorial misconduct. Thus, Longtin has failed to establish that Judge Barrett's denial of this aspect of Longtin's CPL § 440 motion is either contrary to, or represents an unreasonable application of, the Supreme Court precedent referenced above. Therefore, the eighth ground in the petition is denied. See e.g., Miranda, 322 F.3d at 180 (claims alleging prosecutorial misconduct must be assessed "in the context of the entire trial"); Fletcher v. Mann, 956 F. Supp. 168, 173 (N.D.N.Y. 1997) (Scullin, J.) (denying habeas claim alleging prosecutorial misconduct), aff'd, 165 F.3d 13 (2d Cir. 1998).
WHEREFORE, it is hereby
ORDERED, that this action is DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Decision and Order upon the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings (including any appeal of this Decision and Order filed by any party).
IT IS SO ORDERED.