Opinion
04 Civ. 1902 (RJH) (GWG).
February 17, 2005
REPORT AND RECOMMENDATION
On January 17, 1997, in the New York State Supreme Court, New York County, petitioner Jose Lora was convicted following a jury trial of two counts of Murder in the Second Degree (N.Y. Penal Law § 125.25) and one count of Conspiracy in the Second Degree (N.Y. Penal Law § 105.15). Lora was sentenced to consecutive, indeterminate prison terms of 25 years to life for each murder convictions and one term of 8-1/3 to 25 years for the conspiracy conviction. On April 6, 1998, following a second jury trial in the same court, Lora was convicted of an additional count of Murder in the Second Degree (N.Y. Penal Law § 125.25). For that crime, he was sentenced to a prison term of 25 years to life, with that sentence to run consecutively to his other prison terms.
Lora, who is currently incarcerated at the Elmira Correctional Facility in Elmira, New York, has petitioned this Court under 28 U.S.C. § 2254 for a writ of habeas corpus with respect to both trials. For the reasons stated below, his petition should be denied.
I. BACKGROUND
A. The Evidence Presented at Lora's First Trial
The evidence presented at Lora's first trial for the most part has no relevance to the disposition of this petition. Nonetheless, a brief summary is presented here to provide some context for Lora's claims.
At some point during 1993 or 1994, Lora, Guillermo Urena, and Norberto Russell, set up a crack selling operation, known as the "Red Top Crew" ("RTC"), at the corner of 105th Street and Amsterdam Avenue in Manhattan. (See Marchena: I Tr. 36-37, 47-48; Urena: I Tr. 327-30). At some time after the RTC began its crack selling operation, Aries Santana, who was a member of a rival drug gang, began spying on the activities of RTC. (See Marchena: I Tr. 55-60, Urena: I Tr. 345-47). After they became aware of Santana's activities, Lora and Urena decided to kill Santana. (See Urena: I Tr. 351, 353).
As noted, there were two separate trials in this case. "I Tr." refers to the portion of the first trial transcript from November 6, 1996 to December 10, 1996. "IA Tr." covers the period October 22, 1996 to October 31, 1996, including the voir dire. "I Sentencing Tr." refers to the transcript of the sentencing proceeding following the first trial, dated January 17, 1997. "II Tr." refers to the portion of the second trial transcript from February 23, 1998 until February 27, 1998. "IIA Tr." refers to the portion of the second trial transcript from March 2, 1998 to March 6, 1998. "II Sentencing Tr." refers to the transcript of the sentencing proceeding following the second trial, dated April 6, 1998.
On July 11, 1994, Santana, Lora, Urena, and a man named Nino, drove to uptown Manhattan in order to purchase marijuana. (See Urena: I Tr. 352-53, 356). Prior to picking up Santana, Lora and Urena obtained a .44 magnum revolver from Lora's residence. (Urena: I Tr. 353, 356). After Santana was picked up, all four individuals proceeded uptown to St. Nicholas Avenue and 145th Street. (Urena: I Tr. 352-53). Upon arriving at their destination, Lora, Urena and Santana exited the car, and Urena and Santana entered a nearby building. (See Urena: I Tr. 356-57). Urena buzzed an apartment within the building even though he knew ahead of time that nobody would answer the buzzer. (Urena: I Tr. 357-58). Urena and Santana then returned to the car, where Lora was waiting. (See Urena: I Tr. 357-58). Shortly thereafter, Urena went back to the apartment building alone, again ringing the buzzer to the same apartment. (See Urena: I Tr. 357-58). After ringing the buzzer, Urena turned around to see Lora shooting Santana in the neck and back. (Urena: I Tr. 358-59). Following this shooting, an eyewitness, Glenn Mincey, identified Lora as the shooter in a lineup and testified to that identification at Lora's first trial. (See Mincey: I Tr. 1307-1310).
During the summer of 1994, Lora expressed his intention to kill Luis Quinones due to the fact that Quinones allegedly killed Lora's girlfriend's brother. (See Marchena: I Tr. 92-93; Urena: I Tr. 405-07). Quinones began working for RTC and Urena and Lora plotted to kill him. (Urena: I Tr. 407). Approximately nine to eleven days after Santana's murder, Quinones and Urena set out from 104th Street and Amsterdam Avenue to go to an apartment used by Urena to store drugs, which was located seven blocks north on 111th Street. (See Urena: I Tr. 407-08). As Urena and Quinones reached 107th Street and Amsterdam Avenue, Lora approached the two men from behind. (See Urena: I Tr. 413, 415). Lora subsequently shot Quinones in the back of the head and then fired several more shots at Quinones as he lay on the ground. (Urena: I Tr. 413-415). Lora used the same .44 magnum revolver to shoot Quinones that he had used to shoot Santana. (Urena: I Tr. 415-16).
Lora, Urena and Russell also developed a plan to kill Wilson Sanchez because, following Sanchez's release from prison, Sanchez expressed his intention to sell drugs in the same location where RTC had set up its crack selling operation. (Urena: I Tr. 419-22; Russell: I Tr. 1517-18). Lora, Urena and Russell planned to take Sanchez to the Bronx in order to kill him. (Urena: I Tr. 1422-23; Russell: I Tr. 1518-20). On or about August 26, 1994, Urena, Lora and Sanchez got in a car with the purported purpose of going to East Tremont Avenue in the Bronx in order to show Sanchez an apartment from which Sanchez could sell drugs. (Urena: I Tr. 423-25). Upon arriving in the Bronx, Lora, Urena and Sanchez pressed a buzzer to an apartment in the building, to which there was no response. (See Urena: I Tr. 426). As the three men exited the building, Lora shot Sanchez twice, using a gun similar to the .44 magnum revolver that he used to shoot Santana and Quinones. (See Urena: I Tr. 426-28).
Following Lora's arrest, Urena and other members of the RTC selected a lawyer to represent Lora who previously represented Urena in another matter. (See Russell: I Tr. 1528-29).
Lora presented no defense at his first trial.
B. Pre-Trial Proceedings
On October 23, 1996, prior to the commencement of Lora's first trial, Oliver Storch, Lora's attorney, made a motion to be relieved due to a conflict of interest. (See IA Tr. 10-12). The previous day Storch had informed the court that he had previously represented Urena — then a co-defendant of Lora's and subsequently a witness at Lora's trial — on a matter apparently involving Urena's arrest for driving without a license. (See IA Tr. 4-5; Urena: I Tr. 321-22). In addition, Storch informed the court that he also had represented Wellington Marchena, a government witness against Lora, in a prior matter. (IA Tr. 11; Marchena: I Tr. 232). At this time, the prosecutor acknowledged Storch's conflict and did not oppose his motion to be relieved as Lora's counsel. (See IA Tr. 13). Subsequently, the trial court granted Storch's motion to be relieved. (See IA Tr. 14-15).
A lineup involving a witness to the Santana murder, Glenn Mincey, was scheduled for October 24, 1996, the day following Storch's motion to the court (IA Tr. 15; see Mincey: I Tr. 1307-10). After acknowledging that Storch's conflict did not affect his ability to be present at the lineup, the prosecutor and Storch agreed to Storch's attending the lineup in order to represent Lora. (See IA Tr. 15). As noted, Mincey identified Lora at the lineup as the individual who shot Santana — an identification to which he testified at Lora's first trial. (Mincey: I Tr. 1307-1310). In addition, a suppression hearing was held during the course of Lora's first trial. (See I Tr. 1231-49). At the suppression hearing, neither Lora nor his new counsel expressed dissatisfaction with Storch's representation of Lora at the time of the lineup. (See I Tr. 1235-36).
C. Verdict and Sentence
On December 12, 1996, a jury convicted Lora of one count of Conspiracy in the Second Degree under N.Y. Penal Law § 105.15 and of two counts of Murder in the Second Degree under N.Y. Penal Law § 125.25 for the murders of Luis Quinones and Wilson Sanchez. (I Tr. 1964-66). The jury, however, was unable to agree on the charge that Lora murdered Santana. (I Tr. 1965, 1970-74). On January 17, 1997, Lora was sentenced to three consecutive prison terms: one term of 8-1/3 to 25 years for the conspiracy conviction, and two terms of 25 years to life for the two murder convictions. (I Sentencing Tr. 11).
D. Lora's Second Trial, Verdict and Sentence
On February 23, 1998, a jury trial in Supreme Court, New York County commenced at which Lora was again charged with the murder of Santana. The prosecution at the second trial presented much of the same evidence as it had at the first trial, including the testimony of Urena and Russell relating to the murder of Santana and Lora's subsequent admissions to the murder. (See generally Urena: II Tr. 435-513, 536-49, 608-611; Russell: IIA Tr. 302-25, 348-49). In addition, at the second trial, the court excluded evidence of Lora's other two homicides, although it admitted evidence of Lora's drug activity and his position within RTC. (See generally II Tr. 3-10, 329).
Unlike the first trial, at the second trial the prosecution did not call Mincey as a witness. After the prosecution rested, however, Lora called Mincey, who was the defense's sole witness. (See generally Mincey: IIA Tr. 403-40). Mincey testified that the man who shot Santana was the man who entered the building with the victim, not the man who waited outside the building. (See Mincey: IIA Tr. 408-18, 420-22). On cross-examination, however, Mincey made an in-court identification of Lora as the man who entered the building and shot Santana. (Mincey: IIA Tr. 430).
On March 6, 1998, a jury convicted Lora of Murder in the Second Degree for the murder of Santana. (IIA Tr. 621). On April 6, 1998, Lora was sentenced to a prison term of 25 years to life with that sentence to run consecutively to his previously-imposed prison terms. (II Sentencing Tr. 7).
E. Lora's Direct Appeal
Lora appealed both of his convictions to the Appellate Division, First Department. In his brief as to the first conviction, Lora raised the following three issues: (1) the trial court violated his right to effective assistance of counsel because Lora's counsel at the lineup suffered from a conflict of interest that required him to be relieved; (2) the trial court's reasonable doubt instruction to the jury improperly shifted the burden of proof to the defense; and (3) the trial court's instructions to the jury that Lora would not face the death penalty if convicted violated his due process rights under the federal and state constitution. Brief for Appellant, dated December 2001 (reproduced as Ex. A to Appendix in Support of Answer Opposing Petition for a Writ of Habeas Corpus ("Appendix")) ("Pet. App. Br. I"), at 8, 12, 15. In his brief as to his second conviction, Lora again raised all three of these issues. See Brief for Appellant, dated December 2001 (reproduced as Ex. B to Appendix) ("Pet. App. Brief II"), at 9, 13, 24. Lora's brief as to his second conviction also raised a fourth point in which he claimed that the evidence of crimes committed by Lora's gang and other associates was not relevant and unduly prejudicial. See id. at 18.
On October 3, 2002, the Appellate Division unanimously affirmed Lora's convictions. People v. Lora, 298 A.D.2d 149, 149-50 (1st Dep't 2002). On the first issue, the court rejected Lora's claim and held that he "received effective assistance of counsel at [the] pretrial lineup." Id. at 150. As to the second issue, the court found the claim to be "unpreserved" but noted that in any event the reasonable doubt instruction was proper. Id. On the third issue, the court held that Lora's claims regarding the voir dire were also "unpreserved" and that, if it were to review this claim, it would find that it was without merit. See id. Finally, as to the fourth issue, the court also found this claim to be "unpreserved" because, inter alia, Lora's trial counsel "never articulated any objection to the specific evidence challenged on appeal, and never objected when the specific evidence was admitted." Id. (citation omitted). In an alternative holding, the court held that the evidence of Lora's criminal activity was "properly admitted as relevant background to understanding the relationship between the witnesses and defendant" and because this evidence was relevant to Lora's motive for murdering Santana. Id.
By letter application dated October 28, 2002, Lora sought leave to appeal to the New York Court of Appeals. See Letter from Aytan Y. Bellin, Esq. to the Hon. Judith Kaye, dated October 28, 2002 (reproduced as Ex. F to Appendix) ("Oct. 28 Leave Letter"), at 1. Lora subsequently submitted an additional letter in support of his application for leave to appeal. See Letter from Aytan Y. Bellin, Esq. to the Hon. Carmen Beauchamp Ciparick, dated November 21, 2002 (reproduced as Ex. G to Appendix) ("Nov. 21 Leave Letter"), at 1. On December 26, 2002, leave was denied.People v. Lora, 99 N.Y.2d 560 (2002).
F. The Instant Habeas Corpus Petition
Lora timely filed this petition for writ of habeas corpus on March 10, 2004. See Petition Pursuant to 28 U.S.C. § 2254 by a Person in State Custody for a Writ of Habeas Corpus, filed March 10, 2004 (Docket #1) ("Petition"). Lora relies upon the same four grounds that he raised in the Appellate Division in support of his claim for habeas corpus relief. See id. ¶¶ 13-23. Specifically, Lora argues (1) that he was "prejudiced by the reception of evidence of un-charged crimes" at his trial; (2) that the trial court's "discussion and exclusion [sic] of the death penalty before the jury . . . tainted the jury's deliberations by involving them in matters outside the province of a jury in the State of New York"; (3) that the trial court gave "faulty" instructions to jurors as to burden of proof and the reasonable doubt standard; and (4) that his counsel "at a crucial stage of the proceedings was tainted by a known conflict of interest and had been disqualified prior to that proceeding."See Reply in Support of Petition Pursuant to 28 U.S.C. § 2254 by a Person in State Custody for a Writ of Habeas Corpus, filed August 23, 2004 (Docket #12) ("Pet. Reply"), ¶ 4. Respondent has opposed the petition. See Answer to Petition for a Writ of Habeas Corpus, filed June 21, 2004 (Docket #11); Memorandum of Law in Support of Answer to Petition for a Writ of Habeas Corpus, filed June 21, 2004 (Docket #10) ("Resp. Mem."). Lora filed a reply memorandum.See Pet. Reply.
II. LAW GOVERNING HABEAS CORPUS PETITIONS
A. Exhaustion
Under 28 U.S.C. § 2254(b)(1)(A), applicants for habeas corpus relief must "exhaust the remedies available in the courts of the State." This provision requires a petitioner to present his or her claims in federal constitutional terms to all levels of the state appellate courts. See, e.g., Grey v. Hoke, 933 F.2d 117, 119-120 (2d Cir. 1991); Morgan v. Jackson, 869 F.2d 682, 684 (2d Cir. 1989), cert. denied, 493 U.S. 920 (1989). Here, Lora presented to the Appellate Division the federal constitutional nature of the four claims he now asserts through his citation to case law and discussion of federal constitutional provisions. See Pet. App. Brief I at 8, 13, 16; Pet. App. Brief II at 20.
Respondent argues that Lora has failed to exhaust some of his claims because they were not raised in his letter application to the Court of Appeals seeking leave to appeal. See Resp. Mem. at 27, 38, 46. This argument is meritless, however, given that Lora's letter application seeking leave to appeal made plain that he was seeking review of "each and every part" of the Appellate Division's decision. See Oct. 28 Leave Letter at 1. That Lora chose to expound on just one of the issues raised does not detract from this initial statement. See, e.g., Morgan v. Bennett, 204 F.3d 360, 369-71 (2d Cir.) (all issues exhausted where leave letter sought review of "all issues" raised in the Appellate Division but subsequent letter discussed in detail only some of the issues), cert. denied, 531 U.S. 819 (2000). Accordingly, Lora's claims are exhausted.
B. Procedural Bar
Where a state court rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default may constitute an adequate and independent ground for the state court decision. See, e.g., Coleman v. Thompson, 501 U.S. 722, 729-30, 749-50 (1991). A procedural default constituting an adequate and independent state ground for a decision "will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice,'" Harris v. Reed, 489 U.S. 255, 262 (1989) (citations omitted), which requires a petitioner to demonstrate "actual innocence," Calderon v. Thompson, 523 U.S. 538, 559 (1998); accord Dretke v. Haley, 124 S. Ct. 1847, 1848 (2004) (citation omitted); Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002); see also Harris, 489 U.S. at 264 n. 10 ("[A]s long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent state ground doctrine "curtails reconsideration of the federal issue on federal habeas."). This doctrine applies even where the state court issues an alternative holding addressing the procedurally defaulted claim on the merits. See, e.g., Harris, 489 U.S. at 264 n. 10;Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990) (per curiam).
Each of Lora's claims is discussed below.
III. DISCUSSION
A. Admission of Evidence
Lora first claims that his murder convictions were "based, in substantial part, on the prejudicial evidence of uncharged crimes committed both pre and post his incarceration pending trial of the crimes alleged in the indictments." Petition ¶ 13. He argues that the admission of the evidence of "uncharged crimes and alleged crimes" prevented him from having a fair trial in violation of his constitutional right to due process. Id. ¶ 15.
Here, the Appellate Division rejected Lora's claim regarding the admission of irrelevant and prejudicial evidence on an "independent" state law ground. As petitioner's second trial for the murder of Santana began, the prosecution sought to admit evidence both of Lora's two previous murder convictions as well as his narcotics activity in connection with his role in RTC. (See II Tr. 3-6). The trial court concluded that the evidence relating to Lora's two previous murder convictions should not be admitted. (II Tr. 329). Lora, however, did not contest that evidence relating to his narcotics activity was relevant and admissible. (Cf. II Tr. 7, 323-31). At the time this evidence was admitted, no objection was made by Lora's counsel. Thus, Lora did not in any way alert the trial court to the issue raised in the Appellate Division and in this Court: that the evidence relating to his narcotics activity was "irrelevant and highly prejudicial." See Pet. App. Brief II at 18.
N.Y. Crim. Proc. Law ("C.P.L.") § 470.05(2) precludes appellate review of any ruling made by the trial court unless a protest was made to the ruling "at any . . . time when the court had an opportunity of effectively changing the same." Similarly, the New York Court of Appeals has long adhered to a "rule of preservation," which states that, in order to preserve a question of law for appellate review, a party must make the trial court aware of its objection while there is time to cure the alleged error. See, e.g., People v. Martin, 50 N.Y.2d 1029, 1031 (1980) (citing cases) (internal quotation marks omitted). New York's preservation requirement demands that a defendant raise all objections in a timely fashion so that any errors of law occurring at trial can be promptly cured. See People v. Michael, 48 N.Y.2d 1, 6 (1979); cf. People v. Smith, 221 A.D.2d 251, 252 (1st Dep't 1995) (concluding that the defendant's claim that evidence of "uncharged crimes was improperly admitted" was unpreserved for appellate review where the defendant "failed to object to the testimony in question").
As a result, the People argued on appeal that, because Lora failed to object to the admission of evidence relating to his narcotics activity, the issue was unpreserved for review on appeal. See Brief for Respondent, dated August 2002 ("Resp. App. Brief") (reproduced as Ex. C to Appendix), at 39-40. The Appellate Division agreed that this issue was "unpreserved" because Lora had "conceded the propriety of admitting some such evidence, never articulated any objection to the specific evidence challenged on appeal, and never objected when the specific evidence was admitted." Lora, 298 A.D.2d at 150 (citation omitted). The respondent now argues that this claim is procedurally barred. See Resp. Mem. at 25-27. Lora has not opposed this argument. See Petition ¶¶ 13-16; Pet. Reply ¶¶ 7-20, 25, 29-33.
As noted, the procedural bar is preserved even in instances where, as here, the state court proceeds to rule on the merits in an alternative holding. See, e.g., Harris, 489 U.S. at 264 n. 10; Velasquez, 898 F.2d at 9. In addition, that the Court of Appeals issued a summary denial of leave to appeal is of no moment because where "the last reasoned opinion on the claim explicitly imposes a procedural default" — as is true of the Appellate Division's decision in this case — a federal habeas court "will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991); see also Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995) (federal habeas court looks to Appellate Division's reliance on procedural bar where Court of Appeals issues summary denial of leave to appeal), cert. denied, 520 U.S. 1106 (1997). Thus, the procedural default relied upon by the Appellate Division constituted an "independent" state law ground for the decision.
The remaining question is thus "whether the state ground relied upon is 'adequate' to preclude federal habeas review." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). "[A] procedural bar will be deemed 'adequate' only if it is based on a rule that is 'firmly established and regularly followed' by the state in question." Id. (quoting Ford v. Georgia, 498 U.S. 411, 423-24 (1991)). Whether application of the procedural rule is "firmly established and regularly followed" must be judged in the context of "the specific circumstances presented in the case, an inquiry that includes an evaluation of the asserted state interest in applying the procedural rule in such circumstances." Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362, 386-87 (2002)). The Second Circuit has set forth the following "guideposts" for making this determination:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had 'substantially complied' with the rule given 'the realities of trial,' and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Id. (citing Lee, 534 U.S. at 381-85).
Application of these considerations to Lora's case leads to the conclusion that the procedural bar relied upon by the Appellate Division is one that is "firmly established and regularly followed." With respect to the first guidepost, Lora's failure to make specific and timely arguments that the evidence relating to his narcotics activity was irrelevant and prejudicial was "actually relied on" by the trial court during his second trial because the court, in weighing the probative value of the evidence against its potential prejudicial effect, never heard any arguments from Lora as to the potential for prejudice this evidence could have on his case. Lora's failure to object to the admission of this evidence deprived the court of any opportunity to minimize whatever prejudicial effect the evidence may have had, either by limiting the amount of narcotics-related evidence being admitted or by giving the jury a limiting instruction as to its use. Cf. Cotto, 331 F.3d at 243 (while "the likely impact of a timely objection involves a certain degree of speculation," it is possible that "the trial court may well have come to a different conclusion" had the reasons for the objection been stated).
As for the second consideration, it is well-settled under New York law that, "in order to preserve a claim of error in the admission of evidence" for appellate review, there must be a timely, sufficiently specific objection in the trial court. See People v. Gray, 86 N.Y.2d 10, 19 (1995); accord People v. Fleming, 70 N.Y.2d 947, 948 (1988); People v. West, 56 N.Y.2d 662, 663 (1982). Thus, state case law indicates that "compliance with the rule was demanded in the specific circumstances presented." Cotto, 331 F.3d at 240.
The final guidepost also favors the respondent. Lora could not possibly argue that he "substantially complied" with the New York preservation rule as stated in Criminal Procedure Law ("CPL") § 470.05 and New York case law in light of the fact that he never alerted the trial court to what evidence was wrongfully admitted or which evidence required a curative instruction. Thus, the trial court was not alerted to the alleged irrelevance of the narcotics-related evidence or the potential prejudicial effect that the evidence could have had on Lora's case.
In sum, the Appellate Division's reliance on the state preservation rule in this instance constitutes both an adequate and independent ground for the state court decision. Consistent with this conclusion, federal habeas courts will generally not consider claims rejected as unpreserved by the New York state courts where, as here, the defendant failed to alert the trial court to the specific issue upon which he seeks review. See, e.g., Garcia, 188 F.3d at 78-79 (citing cases); Bossett v. Walker, 41 F.3d 825, 829 n. 2 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995) (citations omitted); Jones v. Duncan, 162 F. Supp. 2d 204, 213 (S.D.N.Y. 2001) (citations omitted).
Although procedurally defaulted claims are deemed exhausted for habeas purposes, a procedural default "will bar federal habeas review of the federal claim, unless the habeas petitioner can show 'cause' for the default and 'prejudice attributable thereto,' or demonstrate that failure to consider the federal claim will result in a 'fundamental miscarriage of justice.'"Harris, 489 U.S. at 262 (citations omitted); accord Coleman, 501 U.S. at 749-50, Bossett, 41 F.3d at 829. In order to show a "fundamental miscarriage of justice," Harris, 489 U.S. at 262, a petitioner must demonstrate "actual innocence." Calderon, 523 U.S. at 559; accord Washington v. James, 996 F.2d 1442, 1447 (2d. Cir. 1993), cert. denied, 510 U.S. 1078 (1994).
Lora has not suggested that there was "cause" for the procedural default. Nor has he provided evidence of "actual innocence." Instead, he has merely restated the claims he asserted before the Appellate Division. As a result, federal habeas review of this claim is barred.
Lora's submissions to this Court could be read as setting forth a claim that he received ineffective assistance of counsel at his second trial due to counsel's failure to object to the evidence relating to his narcotics-related activity. See Pet. Reply at 16-19; Letter from Mark Dwyer, dated August 26, 2004, at 1. Lora, however, failed to raise this claim in his brief appealing his second conviction to the Appellate Division. See Pet. App. Brief II at 18-23. Nor did Lora include this claim in either of his letters seeking leave to appeal to the Court of Appeals. See generally Oct. 28 Leave Letter; Nov. 21 Leave Letter. As a result, this claim is unexhausted since Lora failed to present this claim in federal constitutional terms to the state appellate courts. See, e.g., Grey, 933 F.2d at 119-20. In any event, the claim is meritless because, as the Appellate Division properly concluded, the evidence was "relevant background to understanding the relationship between the witnesses and defendant and on the issue of defendant's motive in committing the murder." People v. Lora, 298 A.D.2d at 150.
B. Claim Regarding Improper Discussion of Death Penalty With Jurors
Lora's second claim for habeas relief is that "[t]he trial court's mention of potential penalties and its ruling out the death penalty during voir dire tainted the jury pool and denied [him] both a fair trial before an unbiased jury and due process of law." See Petition ¶ 17. During voir dire at both trials, the trial court on a number of occasions stated that Lora's case was not a death penalty case. (IA Tr. 70-71, 154, 166, 183, 210, 280; II Tr. 128). Lora contends that the trial court's discussion of potential penalties "with the prospective jurors at voir dire biased the jury by indicating that its findings could not result in the death penalty," and, as a result, "reduced the prosecution's burden of proof." Petition ¶¶ 19, 20; accord Reply Petition ¶ 49. Lora also argues that the trial court's discussion of possible penalties with prospective jurors was improper because "[t]he propriety of and the determination of a criminal sentence in New York is the exclusive province of the court" and is not an issue with which jurors should be concerned. Petition ¶ 18.
Like his first claim, however, Lora's second claim for relief is procedurally defaulted. At no point during either Lora's first or second trial did counsel object when the trial court mentioned the fact that the case did not involve the death penalty. The People argued on appeal that Lora's failure to object to the trial court's mention of the death penalty during voir dire required that the Appellate Division find Lora's claim to be "unpreserved for review." See Resp. App. Brief at 30. The Appellate Division ruled that this contention was "unpreserved" and declined to review it "in the interest of justice." See Lora, 298 A.D.2d at 150. While the Appellate Division did not specifically state the basis for its holding that the issue was not preserved, its statement was sufficient to show reliance on a procedural bar. See, e.g., Harris, 489 U.S. at 265 n. 12. The fact that the Appellate Division indicated that if it were to review this unpreserved claim on the merits it would reject it, see Lora, 298 A.D.2d at 150, is of no significance. The procedural default doctrine applies even where, as here, the Appellate Division issues an alternative holding addressing the procedurally defaulted claim on the merits. Harris, 489 U.S. at 264 n. 10. Accordingly, the Appellate Division rejected Lora's claim on an "independent" state law ground.
In addition, the procedural bar is one that is "firmly established and regularly followed" and thus "adequate" underCotto. With respect to the first guidepost, Lora's failure to object to the trial court's mentioning of the death penalty during voir dire was "actually relied on" in the sense that the trial court never was given an opportunity to reconsider — and conceivably cure by some additional instruction — the allegedly improper statements to prospective jurors. As for the second guidepost, it is well settled under New York law that the failure to make a contemporaneous objection precludes appellate review of the claim of error. See CPL § 470.05(2); see generally People v. Nuccie, 57 N.Y.2d 818, 819 (1982) (failure to object to jury instruction). Thus, state case law indicates that "compliance with the rule was demanded in the specific circumstances presented." Cotto, 331 F.3d at 240. The third guidepost likewise fails to help Lora since he could not possibly argue that he "substantially complied" with the state procedural rule given that his counsel did not in any way alert the trial court that he objected to the statements being made to the jury.
The procedural default, therefore, constitutes an adequate and independent ground for the state court decision. Lora has not claimed that there were circumstances constituting "cause" for the procedural default. Nor has he set forth any facts supporting a claim of "actual innocence." As a result, federal habeas review of this claim is barred.
C. Claim Regarding Improper Reasonable Doubt Jury Instruction
Lora's third claim for habeas relief is that he "was denied due process of law and a fair trial" due to the trial court's "miss-instructing [sic] [the jury] as to the burden of proof and the definition of reasonable doubt." Petition ¶ 22; accord Reply Petition ¶¶ 34-38. Lora argues that the reasonable doubt instruction to the jury at his first trial "improperly shifted the burden of proof" to the defense. Pet. App. Brief I at 12. Lora also contends that the trial court's reasonable doubt instruction at his second trial was error because it "improperly lowered the burden of proof" the prosecution needed to meet in order to obtain a conviction. Pet. App. Brief II at 24.
Like his previous two claims, however, Lora's third claim for relief is also procedurally defaulted. Lora concedes that his trial counsel did not object to the reasonable doubt charge that was given by the trial judge at either of his trials. (I Tr. 1841-44; IIA Tr. 596-99); see Pet. App. Brief I at 14; Pet. App. Brief II at 25. On direct appeal, the People argued that Lora's failure to object to the court's instructions regarding reasonable doubt at both trials rendered his claims unpreserved for appellate review. See Resp. App. Brief at 35-36. In its decision, the Appellate Division agreed with the People and "decline[d] to review these unpreserved claims in the interest of justice." Lora, 298 A.D.2d at 150. The Appellate Division went on to state that "[w]ere we to review these claims, we would find that both charges conveyed the proper standards." Id. (citation omitted). As was the case with Lora's other claims, this statement of the Appellate Division is sufficient to show reliance on a procedural bar. See, e.g., Harris, 489 U.S. at 265 n. 12. Moreover, the procedural default doctrine applies even though the Appellate Division issued an alternative holding addressing the procedurally defaulted claims on the merits. Id. at 264 n. 10. Therefore, the Appellate Division rejected Lora's claim on an "independent" state law ground.
In addition, the procedural bar is "firmly established and regularly followed" and thus "adequate." As was the case with Lora's previous two claims, Lora's failure to object to the jury charge was "actually relied on" by the trial court because Lora's failure to object deprived the court of an opportunity to reconsider and conceivably cure any alleged defect in its reasonable doubt instruction. Moreover, New York law provides that unless there is a timely objection to a jury charge, appellate review of that instruction is precluded. See CPL 470.05(2); People v. Autry, 75 N.Y.2d 836, 838-39 (1990). Thus, state case law indicates that compliance with the rule "was demanded in the specific circumstances presented." Cotto, 331 F.3d at 240. Nor does the third Cotto "guidepost" assist Lora since no argument can be made that he "substantially complied" with New York's preservation rule given that no objection to the instructions now at issue was ever recorded. As a result, the state procedural rule is "adequate" to preclude federal habeas review of Lora's claim. See Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997) (failure to object to the trial court's reasonable doubt jury instruction constitutes a procedural default under New York law barring habeas review).
The procedural default, therefore, constitutes an adequate and independent ground for the state court decision. Lora has not claimed that there were circumstances constituting "cause" for the procedural default. Nor has he set forth any facts supporting a claim of "actual innocence." Thus, federal habeas review of Lora's third claim for relief is barred.
D. Ineffective Assistance of Counsel Claim
Finally, Lora contends that he is entitled to habeas relief because his Sixth Amendment right to counsel "was violated due to trial counsel's ineffectiveness" at his pre-trial lineup. Petition ¶ 23. Lora asserts that the trial court erred because, "despite having disqualified [his] counsel" due to a conflict of interest, the trial court "permitted that lawyer to continue representing him at a subsequent line-up" in violation of his Sixth Amendment right to counsel. Reply Petition ¶ 43. Lora contends that his first trial counsel, Storch, suffered from a conflict of interest based on Storch's previous representation in unrelated matters of a prosecution witness and Lora's co-defendant (who later became a prosecution witness). See Pet. App. Brief I at 8-10. Lora argues that the trial court therefore should not have permitted Storch to represent him at the pre-trial lineup. See id. at 11.
1. Standard of Review
A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts unless the state court's adjudication: "(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). For a state court claim to be "adjudicated on the merits," the state court need only base its decision "on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (citation omitted). It is not necessary for the state court to refer to the federal aspect of a claim or any federal law for the deferential standard to apply. Id. at 312.
Lora's claim of ineffective assistance of counsel was "adjudicated on the merits" by the Appellate Division. The Appellate Division, in analyzing Lora's ineffective assistance of counsel claim, reasoned that "[a]lthough the attorney who represented defendant for the limited purpose of a lineup . . . had previously represented two prosecution witnesses in unrelated matters," Lora failed to establish "that this potential conflict operated on counsel's representation at the lineup, which did not involve either of the prosecution witnesses at issue." Lora, 298 A.D.2d at 150 (citations omitted). As a result, according to the Appellate Division, Lora "received effective assistance of counsel at [the] pretrial lineup" and the trial court was under no obligation "to conduct an inquiry as [to] whether defendant was waiving his right to conflict-free representation." Id. Because the Appellate Division, in rejecting Lora's claim, based its decision "on the substance of the claim advanced," Lora's ineffective assistance of counsel claim was "adjudicated on the merits." See Sellan, 261 F.3d at 311.
Accordingly, the deferential standard of review articulated in 28 U.S.C. § 2254(d) is applicable to this Court's review of Lora's ineffective assistance of counsel claim. Under the statute, this Court may grant relief only if the Appellate Division applied a rule that contradicted or unreasonably applied the governing law set forth in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent only "if the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. A federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application of clearly established federal law must have been "objectively unreasonable." Id. at 409.
2. Law Governing Ineffective Assistance of Counsel Claims
"In order to prove ineffective assistance, [a petitioner] must show (1) 'that counsel's representation fell below an objective standard of reasonableness'; and (2) 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (quotingStrickland v. Washington, 466 U.S. 668, 688, 694 (1984)); see also Massaro v. United States, 538 U.S. 500, 505 (2003) ("[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.").
In evaluating the first prong — whether counsel's performance fell below an objective standard of reasonableness — a reviewing court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 669; accord Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citation omitted). Concerning the second prong — whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different — the Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).
3. The Merits of Lora's Ineffective Assistance of Counsel Claim
The Sixth Amendment right to counsel includes "a correlative right to representation that is free from conflicts of interest."Wood v. Georgia, 450 U.S. 261, 271 (1981) (citing Cuyler v. Sullivan, 446 U.S. 335 (1980); Holloway v. Arkansas, 435 U.S. 475, 481 (1978)). The Second Circuit "has delineated three levels of conflicts of interest" in evaluating the type of claim now asserted by Lora: "(1) a per se conflict requiring automatic reversal without 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" under theStrickland standard. See United States v. John Doe No. 1, 272 F.3d 116, 125 (2d Cir. 2001) (citing Armienti v. United States, 234 F.3d 820, 823-24 (2d Cir. 2000)), cert. denied, 537 U.S. 851 (2002) (alteration in original); accord United States v. Williams, 372 F.3d 96, 102 (2d Cir. 2004).
It is clear that neither of the first two types of conflict exist here. A per se conflict of interest is limited to those instances "(1) where trial counsel is not authorized to practice law or (2) where counsel is implicated in the crime for which the defendant is on trial." See Doe No. 1, 272 F.3d at 125-26 (citing cases); accord Williams, 372 F.3d at 102 (citing cases). An actual conflict of interest arises in instances where "during the course of the representation, the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action." Armienti, 234 F.3d at 824 (quoting Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993),cert. denied, 511 U.S. 1022 (1994)) (internal quotation marks omitted); accord United States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (citation omitted). To violate the Sixth Amendment, an actual conflict must "adversely affect the attorney's performance." United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994) (citing cases). In order to satisfy the "adverse effect" test, a defendant must demonstrate that "some 'plausible alternative defense strategy or tactic might have been pursued,' and that the 'alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.'" Id. at 157 (quoting Winkler, 7 F.3d at 309).
No such showing has been made here. At the time of the line-up, Storch had previously represented Urena, then a co-defendant, and Marchena, a prosecution witness, in matters unrelated to Lora's case. Lora has made no argument that Storch's and Lora's interests diverged with respect to the conduct of the lineup. Because Lora has not made any showing with respect to how his interests diverged from Storch's at the pre-trial lineup, he is unable to establish the existence of an actual conflict of interest. See, e.g., United States v. Iorizzo, 786 F.2d 52, 55-58 (2d Cir. 1986) (actual conflict of interest existed where counsel previously represented the state's key witness on a related matter and the trial record showed an ineffective cross-examination by the defendant's counsel after the trial judge alerted him to possible ethical violations were he to pursue certain lines of questioning). Here, Storch was relieved following the lineup and thus never provided representation with respect to any matters that could have raised a conflict. See generally Simmons v. Lockhart, 709 F. Supp. 1457, 1469 (E.D. Ark. 1989) (where counsel was representing a potential prosecution witness and counsel withdrew from such representation prior to trial, counsel "removed the potential conflict of interest"), aff'd, 915 F.2d 372 (8th Cir. 1990).
Thus, all that exists in the present case is at most a potential conflict of interest, which arises in instances where "the interests of the defendant may place the attorney under inconsistent duties at some time in the future." Williams, 372 F.3d at 102 (quoting United States v. Kliti, 156 F.3d 150, 153 n. 3 (2d Cir. 1998)) (internal quotation marks omitted). As noted, in order to violate the Sixth Amendment, a potential conflict of interest "requires a finding of both deficient performance by counsel and prejudice" under the standard established in Strickland. See John Doe No. 1, 272 F.3d at 125; accord Armienti, 234 F.3d at 823-24.
Here, Lora has failed to direct the Court's attention to any evidence indicating that Storch's representation was deficient in any way. See generally Petition ¶ 23; Reply Petition ¶¶ 39-48. The lack of evidence set forth by Lora as to Storch's allegedly deficient performance is insufficient to overcome the presumption of competence this Court must accord to Storch's representation under the Strickland test. See, e.g., Dunham, 313 F.3d at 730.
Moreover, Lora has failed to demonstrate any prejudice arising from Storch's representation at the pretrial lineup. See, e.g., Pham, 317 F.3d at 182. The lineup resulted in Mincey's identification of Lora as the individual who shot Santana. But the jury at the first trial did not reach a verdict on the murder count with respect to Santana and the prosecution did not call Mincey as a witness at the second trial. While defense counsel called Mincey at the second trial, neither the defense on either direct or re-direct examination nor the prosecution on cross-examination elicited any testimony from him regarding the lineup. (See generally Mincey: IIA Tr. 403-40). Thus, Lora has not shown how the lineup identification had any bearing at all on his conviction at the second trial for the murder of Santana.
In sum, Lora's ineffective assistance of counsel claim is without merit and thus the Appellate Division's decision on this point neither was contrary to nor represented an unreasonable application of any Supreme Court law. See 28 U.S.C. § 2254(d)(1). Conclusion
For the foregoing reasons, Lora's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections.See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Richard J. Holwell, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Holwell. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).