Opinion
01 Civ. 9369 (HB)
September 22, 2003
OPINION ORDER
Michael Matthews ("petitioner") brings this habeas petition ("petition") pursuant to 28 U.S.C. § 2254 to challenge his conviction. Magistrate Judge Eaton issued a Report and Recommendation ("R R") recommending that this Court dismiss the petition in its entirety. Petitioner timely filed written objections to the R R. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). For the following reasons, petitioner's § 2254 habeas petition is denied and the R R affirmed.
I. BACKGROUND
After a 1997 trial, a jury found petitioner guilty of one count of robbery in the first degree, two counts of burglary in the third degree and one count of resisting arrest in connection with three separate incidents at a Tad's Steakhouse on the west side of Manhattan. At trial, petitioner was represented by Mujib T. Mannan. Hugo Villavicencio — the restaurant's night manager — testified that he saw petitioner enter the restaurant almost every day for several months and suspected that he came to steal items from customers. Villavicencio testified that on April 13, 1996, he saw petitioner steal a wallet from the purse of a customer. When confronted, petitioner threatened him with a knife. He testified that on October 15, 1996, he saw petitioner steal a camera from the back of a customer's chair. On both dates, the police arrived too late to apprehend petitioner. To reduce police response time, Sergeant Gerald Kane gave Villavicencio his beeper number. On October 23, 1996, after observing petitioner in the restaurant again, Villavicencio beeped Sergeant Kane, who immediately sent a plain clothes team of police officers. Villavicencio subsequently observed petitioner move and later return another customer's purse with his feet. Petitioner resisted the ensuing police arrest.
On the eve of trial, on June 17, 1997, Mannan served notice that he planned to have Joaquin Dean testify as an alibi witness. Voir Dire Tr. at 25. The notice listed only Dean's date of birth and business address, and stated only that he would testify that petitioner was not at Tad's Steakhouse on October 16, 1996. Id. at 25-26. The following day, after the People alerted the court to the notice, Mannan explained that the notice was served late because he had been unable to contact and interview Dean regarding the alibi. Id. In addition, Mannan asserted that he had just learned that Dean's sister, Chivon Dean, would also be an alibi witness. Id. at 27. Although the trial court gave the prosecutor several days to investigate the two alleged alibi witnesses, she was unable to investigate the alibis based on the inadequate information provided by Mannan. June 23 Trial Tr. at 3-6. Despite repeated phone calls to the witnesses' place of business, they never returned her calls. Id. at 4-5. After jury selection was completed, the prosecutor moved to preclude the alibi testimony in view of the lateness of the notice, the defectiveness of the notice (because it did not provide a home address or home phone number, or state where petitioner was at the time of the crime), and the general lack of information available to investigate the alibi. Mannan claimed that he provided all the information he had to directly contact these alibi witnesses, id. at 6-7, and subsequently incorrectly informed the court that petitioner was in Miami at the time of the incident, id. at 9. It appears the trial court granted the prosecutor's motion to exclude the alibi testimony, in large part, because Mannan had failed to take the minimal step of informing the prosecutor that the petitioner was in a wholly different state when the alleged crime took place and the total inability of the prosecutor to investigate the veracity of the proposed alibi testimony.
At trial, the prosecutor asked Villavicencio to recount the October 15 incident involving petitioner. Id. at 48. Villavicencio testified that he had observed petitioner steal a camera from a tourist. Id. On cross-examination, Mannan sought to elicit testimony about when Villavicencio had in fact observed petitioner enter the restaurant. Id. at 93. He answered that he did not have a clear recollection, and could only say that the incident took place between 5 p.m. and 10 p.m. Later, when Dean testified as to petitioner's whereabouts on October 15, the prosecutor moved to exclude his testimony and the motion was granted.
In his own defense, petitioner did not offer an explanation as to his whereabouts during the hours in question. He also denied that Villavicencio had told him not to return to the restaurant after Villavicencio had observed him steal belongings from his customers.
Petitioner testified that after he and Dean arrived in New York, he returned home and then went to the studio in Yonkers. June 23 Trial Tr. at 321. At first, petitioner claimed that he may have arrived some time in the afternoon or morning. Id. at 320. Petitioner then testified that he believed that he arrived in the "early afternoon." Id. at 321. When questioned more closely, he testified that he thought he arrived actually at "about ten," id., presumably on the morning of October 15. Finally, when asked about the bevy of contradictory arrival times he just testified about, petitioner claimed that he only knew that he arrived in New York some time between the morning and late afternoon that day. Id. Although the Yonkers studio and petitioner's residence are both quite far from the midtown location of the Tad's Steakhouse, petitioner had a familiarity with the restaurant not only because he had eaten there, but also because he regularly worked nearby in midtown at least three days a week at other studios used by his employer, id. at 306.
Petitioner and his mother both testified that he lived with his mother at the same residence in Spanish Harlem in 1996. See June 23 Trial Tr. at 210, 266. Although petitioner's mother is disabled and thus does not work, she also could not recount when he arrived home nor where he was during the critical period in question.
In 1999, after a jury convicted petitioner, he retained Ronald Alfano to represent him in his post-verdict motion and direct appeals. Alfano appealed to the Appellate Division and filed a motion seeking to have the trial judge vacate the judgment pursuant to N.Y. Criminal Procedure Law § 440.10. In both the appeal and motion, Alfano argued that Mannan had provided ineffective assistance because he (1) failed to investigate petitioner's alibi defense regarding the October 15, 1996 incident, (2) failed to serve an alibi notice in conformity with CPL § 250.20 to preserve the admissibility of Dean's alibi for petitioner, and (3) failed to subpoena a log book kept at the restaurant to record problems. R R at 4. Alfano further argued in petitioner's appeal to the Appellate Division that the trial judge's preclusion of Dean's testimony in regard to October 15 violated petitioner's Sixth Amendment right to compulsory process for obtaining witnesses in petitioner's favor.
Section 250.20 states, in relevant part: "If at the trial the defendant calls such an alibi witness without having served the demanded notice of alibi, or if having served such a notice he calls a witness not specified therein, the court may exclude any testimony of such witness relating to the alibi defense."
At the § 440.10 hearing, Dean testified that petitioner was with him in Miami from October 9 to 15, 1996 and that they flew back together from Miami to LaGuardia airport in New York on October 15. Jan. 3 § 440.10 Tr. at 1748. Dean further testified that they arrived around 4 p.m. or 4:15 p.m. and went their separate ways, before meeting again at their studio in Yonkers, New York, around 7 p.m. or 7:30 p.m. Id. at 8-9. According to Dean, he retained Mannan to represent petitioner shortly after petitioner's arrest and, during one of their early conversations, had allegedly informed Mannan of petitioner's so-called alibi. Id. at 5-9. Although Mannan does not dispute that he learned of the alibi testimony shortly after he was retained by Dean on petitioner's behalf, Mannan contends that he was not retained until shortly before trial. Jan. 24 § 440.10 Tr. at 5. Mannan professes that his ability to investigate the alleged alibi was stymied by the uncooperativeness of the witnesses he sought to question. Id. at 8-10.
Judge Sudolink, who presided over the § 440.10 hearing, found that Dean had retained Mannan in January 1997, and despite having five months to investigate the alleged alibi, he failed to do so. Resp. Exh. D at 2. Judge Sudolink further concluded that (1) Dean's testimony did not obviate the possibility that petitioner was indeed at the restaurant during the relevant time period on October 15 and (2) Mannan was able, through other testimony, to challenge Villavicencio's credibility, particularly with respect to Villavicencio ability to identify petitioner at incidents prior to his arrest on October 23, 1996. Judge Sudolink held that petitioner failed to establish that the trial result would have been different but for Mannan's deficient representation. Id. at 4-5. Moreover, Judge Sudolink concluded that petitioner failed to prove that Mannan's decision not to subpoena the log book was not in fact strategic, because the log book could have corroborated Villavicencio's allegations pertaining to petitioner's thefts at the restaurant. Id. at 5-6.
Petitioner was granted leave to appeal the court's denial of his § 440.10 motion and to consolidate that appeal with his aforementioned direct appeal. The Appellate Division affirmed petitioner's conviction and the denial of his motion to vacate. In doing so, it held that the preclusion of Dean's testimony, arguably as a result of Mannan's failings, neither prejudiced the petitioner nor denied him a fair trial because, even if admitted, it would not have shown petitioner's location during the period in question. The Appellate Division also held that the trial court's admission of evidence in regard to petitioner's "additional, uncharged, crimes committed by [petitioner] in the same restaurant location and observed by . . . [Villavicencio]," was a proper exercise of its discretion, because "[t]his evidence was probative of issues regarding [Villavicencio's] ability to make an identification, including his reason for focusing on [petitioner], as well as tending to prove certain elements of the burglary charge." People v. Matthews, 276 A.D.2d 385, 386, 714 N.Y.S.2d 479, 480 (1st Dep't 2000), cert. denied, 122 N.Y.S.2d 803 (2001). In addition, the Appellate Division declined to review petitioner's contention that the trial court violated his right of compulsory process because petitioner had failed to preserve that claim in either his § 440.10 motion to vacate or at trial. Matthews, 276 A.D.2d at 386, 714 N.Y.S.2d at 481.
II STANDARD OF REVIEW
This Court may adopt those portions of the R R to which no specific objection is made, provided that those portions are not clearly erroneous. 28 U.S.C. § 636(b)(1); Fed.R. Civ, P. 72(b). However, when specific objections are made to a portion of the magistrate's report, this Court must make a de novo determination as to those portions. 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989). Here, petitioner objected to the R R's sections pertaining to his ineffective assistance of counsel and compulsory process claims, but did not raise specific objections to the sections pertaining to the admission of uncharged crimes and the weight of the evidence claims. Accordingly, the first two claims will be reviewed de novo, and the latter two claims will be reviewed only for clear error.
DISCUSSION
A. Ineffective Assistance of Counsel
To prevail under this claim, petitioner must demonstrate that counsel's performance fell "below an objective standard of reasonableness" and that there is a "reasonable probability" that the outcome would have been different but for the deficient representation. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). "[I]t is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell v. Cone, 535 U.S. 685, 699 (2002) (emphasis added). Rather, petitioner "must show that the [the state court] applied Strickland to the facts of his case in an objectively unreasonable manner." Id. (emphasis added). As the United States Supreme Court explained in Williams v. Taylor:
For present purposes, the most important point is that an unreasonable application of federal law is different from an incorrect application of federal law. Because Congress specifically used the word "unreasonable," and not a term like "erroneous" or "incorrect," a federal habeas court may not grant relief simply because it concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.529 U.S. 362, 363 (2000) (emphasis in original).
As to the first prong of Strickland, it is hard to dispute that Mannan's performance, given the five months that he had to investigate the alleged alibi and his failure to do so, fell short of the standard of reasonableness for a competent attorney — one might characterize it as approaching a dereliction of duty. The second prong of the Strickland test, however, is more complicated for me, but on balance I conclude that even if the jury had been privy to the October 15 testimony, that testimony would not have changed the verdict, or put another way, it would have had, at most, a "very slight effect." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 756 (1946)). It is unlikely in my view that the jury would have found petitioner innocent had they known he could have only committed the crime between 5 p.m. and 7 p.m. rather than 5 p.m. to 10 p.m. The "alibi" witnesses had no knowledge of petitioner's whereabouts between about 4 p.m. and 7 p.m. This testimony provided petitioner with ample time to commit the crime and meet the alibi witnesses at the studio in Yonkers. Furthermore, petitioner failed to offer any explanation as to his specific whereabouts during the hours in question, and was evasive about his whereabouts for the entire day of October 15, claiming at different points in his testimony that he arrived in New York at 10 a.m. in the morning, in the early afternoon and in the late afternoon. Id. at 310-11. Consequently, the "alibi" testimony, even if admitted, would have still left open the very real possibility that he in fact visited Tad's Steakhouse some time between 5 p.m. and 7 p.m. before going to the studio. Although the basis for the prosecutor's claim that the crime occurred at around 6:45 is unclear, petitioner's counsel, Alfano, concedes that even so, petitioner still "would have had enough time to commit the crime" and be at the studio by 7:30. Resp. Exh. E (Matthews Brief) at 61. In view of (1) Villavicencio's previous contact and observation of petitioner at the restaurant, (2) Villavicencio's identification of petitioner as the perpetrator of the theft on October 15, and (3) the inability and unwillingness of the petitioner, when he testified, to account for his time during the critical period, I am compelled to conclude that the evidence warrants a finding that the state court's application of Strickland was not objectively unreasonable. The R R on this claim must be affirmed.
Indeed, it is undisputed that petitioner has wholly failed to adduce any evidence of when he arrived at Yonkers, despite having the opportunity to do so when he testified at trial, in his affidavit in support of his § 440.10 motion, and at the hearing on the motion.
Having traveled from midtown to destinations past Yonkers during rush hour in the evening, I would agree with Alfano's honest admission that petitioner could very well have committed the crime, traveled to Yonkers, and have been at the studio by the time the so-called alibi witnesses arrived.
B. Compulsory Process
Petitioner contends that his compulsory process claim is not procedurally barred because he had "fully exhausted" his claim in state court, and therefore it is a proper ground upon which habeas relief may be granted. Obj. to R R, at 1. Petitioner is mistaken. In New York, to preserve a claim for appeal, the claim must be "interjected at the fact-finding level in such a manner and at such a time as to fairly apprise the court and the opposing party of the nature and scope of the matter contested." Garcia v. Lewis, 188 F.3d 71, 78 (2d Cir. 1999) (quoting People v. Jones, 81 A.D.2d 22, 41-42, 440 N.Y.S.2d 248, 261 (2d Dep't 1981)); N.Y. Crim. Proc. L. § 470.05(2). Here, the Appellate Division found that petitioner had failed to preserve that claim in either his § 440.10 motion or at trial, and thus petitioner had procedurally defaulted on his compulsory process claim. Accordingly, the Appellate Division declined to review petitioner's compulsory process claim on the merits. Matthews, 276 A.D.2d at 386, 714 N.Y.S.2d at 481. Petitioner cites to nothing in the transcript or the § 440.10 briefs to demonstrate that the compulsory process claim was preserved at the trial court level for appellate review on the merits. Petitioner's compulsory process claim is therefore procedurally barred.
The procedural default stands as an independent and adequate state ground for rejecting petitioner's compulsory process claim, which ordinarily precludes this Court's review unless petitioner can show cause for the default and prejudice, or that failure to consider the claim would result in a miscarriage of justice, i.e., the "constitutional violation has probably resulted in the conviction of one who is actually innocent." Murray v. Carrier, 477 U.S. 478, 496 (1986); see Coleman v. Thompson, 501 U.S. 722, 750 (1991); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). In order to demonstrate "cause" for the procedural default, the petitioner must show that "some objective factor external to the defense impeded counsel's efforts to comply with the [s]tate's procedural rule." Murray v. Carrier, 477 U.S. at 488. Factors that meet this standard include a factual or legal basis for a claim not being reasonably available to counsel, interference by officials which made compliance impracticable or ineffective assistance of counsel. See id.; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994). Although Mannan's representation of petitioner borders on the reprehensible, his conduct is insufficient to constitute cause for the procedural default here. Alfano, whom petitioner retained for his § 440.10 motion, appears to have represented petitioner adequately. Moreover, petitioner does not complain that Alfano, ineffectively represented him on the motion or on appeal. Accordingly, petitioner fails to demonstrate that cause exists for his failure to preserve his constitutional claim for appellate review.
As to the miscarriage of justice claim, this is successful "in those extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime." Funderbird-Day v. Artuz, 2002 WL 31427345, at *6 (S.D.N.Y. Nov. 4, 2002) (quoting Rodriquez v. Mitchell, 252 F.3d 191, 204 (2d Cir. 2001)). To show a fundamental miscarriage of justice, petitioner must show by clear and convincing evidence that but for the constitutional error, no reasonable juror would have found the petitioner guilty. Reyes v. State, 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999) (quoting Sawyer v. Whitley, 505 U.S. 333, 335 (1992)). Given that the petitioner had sufficient time to commit the crime, even after narrowing the time frame with the "alibi," I cannot conclude that no reasonable juror would have found petitioner guilty but for the alleged compulsory process violation arising from the exclusion of the alibi witness testimony.
Notwithstanding the procedural default, petitioner contends, under Taylor v. Illinois, 484 U.S. 400 (1988) and Noble v. Kelly, 246 F.3d 93 (2d Cir. 2001), the state court erred by precluding the alibi witness testimony before determining whether his counsel willfully failed to comply with N.Y. Criminal Procedure Law § 250.20. The United States Supreme Court in Taylor held that it was not an error for a state court to limit witness testimony, particularly when a defendant's attorney has willfully attempted to flout the court's procedural rules to manipulate the judicial system and gain an unfair advantage. 484 U.S. at 415-17. While the Supreme Court did not address whether a habeas petitioner's procedural default on a compulsory process claim should be treated differently than other procedurally defaulted claims, case law suggests no different treatment is warranted.
Following Taylor, the Second Circuit in Noble held that it was a constitutional error to exclude an alibi witness unless the court first found that the defense counsel's non-compliance with § 250.20 was willful. Noble, 246 F.2d at 99. Noble is clearly distinguishable, because unlike the witness in Noble, neither of the so-called "alibi" witnesses here had personal knowledge of petitioner's whereabouts for two or more hours, during which the crime could have been committed and the defendant could have committed it. Indeed, if that were the case here, I would undoubtedly have come out differently. Accordingly, unlike in Noble, here, they can not be deemed "alibi" witnesses, e.g., someone who could "plac[e] the defendant in a location other than the scene of the crime at the relevant time." See id. at 98 n. 2 (citing Black's Law Dictionary, 72 (7th ed. 1999)). Consequently, neither Tailor nor Noble dictate an outcome different from that recommended by the R R. The R R's rejection of this claim is affirmed.
C. Admission of Uncharged Crime and Weight of the Evidence
Petitioner did not specifically object to Magistrate Judge Eaton' s R R rejecting the admission of uncharged crimes claim and the weight of the evidence claim. I have reviewed the R R and find no clear error as to the rejection of those grounds. Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) ("[A] district court need only satisfy itself that there is no clear error on the record."); see also Pizarro v. Bartlet, 776 F. Supp. 815, 817 (S.D.N.Y. 1991) (holding that a court may accept an R R if it is "not facially erroneous").
IV. CONCLUSION
For the foregoing reasons, I adopt the R R in all aspects. The Clerk of the Court is directed to close any pending motions and remove this case from my docket.
SO ORDERED