Opinion
03 Civ. 8352 (GEL).
August 12, 2004
Wilson Mayo, pro se.
Alexander Levine, Assistant District Attorney (Joseph M. Latino, Assistant District Attorney, Jeanine Pirro, District Attorney for the County of Westchester, of counsel), White Plains, NY, for Respondent.
OPINION AND ORDER
Wilson Mayo, a New York state inmate at Great Meadow Correctional Facility, petitions for a writ of habeas corpus, challenging his conviction and sentence in Westchester County Court for robbery in the first degree. Because of Mayo's status as a second violent felony offender, he received a determinate sentence of twenty-five years in prison. Mayo argues, first, that his trial counsel was ineffective because he waived Mayo's right to be present at a particular court session and failed to renew at trial a motion denied in pretrial proceedings; and second, that his appellate counsel was ineffective because he failed to raise a claim of prosecutorial misconduct at Mayo's sentencing. Both claims lack merit, and the petition will be denied.
BACKGROUND
The evidence at trial convincingly established that Mayo perpetrated a frightening home-invasion robbery in Peekskill on September 23, 1997. At about 1 p.m. on that day, Mayo, posing as an employee of the town water department, obtained entry to the home of his victims, a young woman and her four-year old daughter. After the woman questioned Mayo's suspicious conduct, he pulled out a knife and threatened to kill her and her child unless she gave him her jewelry and money. He forcibly pulled the crying woman and her terrified, screaming child into the master bedroom, rifled the drawers, and stole various items of jewelry and money, cutting the woman in the process. Once he had stolen all he could, Mayo punched her in the chest, shoved her to the floor, and fled. Police officers responding to the woman's 911 call found her wounded and both mother and daughter extremely upset, and observed details at the crime scene corroborating the victim's account of the crime. Several days later, when she felt calm enough to participate in a formal interview, she identified Mayo as the perpetrator.
At trial, Mayo did not dispute the identification. He testified that he and the adult victim had had a sexual relationship for months; that he met her while working as a laborer for the builders of the residential development where she lived; and that the two had smoked crack together on numerous occasions. According to Mayo, on the day of the alleged crime, the woman had given him jewelry and money to buy drugs for them, as she had in the past, and she became angry and concocted the robbery story because he failed to return with the drugs. In view of his numerous vague and contradictory answers on cross-examination and the victim's unequivocal denial of his story, the jury unsurprisingly resolved the credibility contest against Mayo and found him guilty of robbery, though it acquitted him of burglary, assault, and weapons possession charges.
On December 2, 1998, the court sentenced Mayo, as a second violent felony offender, to a determinate term of twenty-five years in prison. It also denied his motion pursuant to N.Y. Crim. Pro. Law § 330.30 to set aside the conviction on the ground that it could not be reconciled with the jury's acquittal of Mayo on the weapons possession charge. The Appellate Division unanimously affirmed the conviction, People v. Mayo, 716 N.Y.S.2d 883 (2d Dep't 2000), and the Court of Appeals denied leave to appeal, 96 N.Y.2d 785 (2001) (Ciparick, J.). Mayo then collaterally attacked his conviction, first, pursuant to N.Y. Crim. Proc. Law § 440.10, in the trial court (challenging trial counsel's effectiveness), and then, by petition for a writ of error coram nobis, in the Appellate Division (challenging appellate counsel's effectiveness). Both motions were denied. (App., Exs. L, Q, V.) After exhausting his appeals of the post-trial motions, Mayo filed this petition for habeas corpus, the timeliness of which the respondent does not dispute.
DISCUSSION
I. Effectiveness of Trial Counsel
Mayo first argues that his trial counsel was ineffective because she waived his right to be present at the June 22, 1998, hearing at which counsel unsuccessfully sought to compel a physical examination of the victim, and because she later failed to renew that application at trial. Mayo wanted to compel a physical examination of the victim because he claimed that it would reveal a mole or similar mark in her genital area, and his knowledge of this mark would, he argued, corroborate his claim that he and the victim had a longstanding sexual relationship. Trial counsel duly made such a motion before trial (App., Ex. A.), which the court denied with leave to renew at trial. The application was not renewed. Mayo first raised his claim of ineffectiveness in the state courts on his motion to set aside his conviction, after his unsuccessful direct appeal.
The state court initially denied Mayo's motion on procedural grounds, holding that he had forfeited the claim by failing to raise it on appeal, since the asserted ineffectiveness was based entirely on facts available in the trial record, and by failing to provide an affidavit from trial counsel or a suitable explanation for its absence, as required by state law. (App., Ex. L at 2-3.) Furthermore, the court concluded that the trial court had been correct to deny Mayo's motion, for "any questioning of the victim with respect to this alleged prior relationship would be collateral inasmuch as it would only be elicited to possibly effect the victim's credibility." (Id. at 3.)
Mayo sought reconsideration, which the court granted. While noting that Mayo had submitted a letter indicating that his trial counsel no longer worked at the Legal Aid Society, the court made clear that such a letter did not suffice to substitute for the affidavit required by New York law. But "even assuming arguendo that this was a valid explanation for the absence of the required affidavit," the court adhered to its prior ruling. Characterizing the question as "whether [Mayo's] attorney properly examined a witness under oath," the court held that Mayo raised only "a matter of trial strategy." (App., Ex. Q at 2.) The court also reiterated its rulings that the trial court had been correct to deny, as a collateral matter, the application for a physical examination, and that the issue could and should have been raised on direct appeal. (App. Ex. Q at 2.)
In its response to Mayo's federal habeas petition, the State argues that this ineffectiveness claim is procedurally barred because Mayo failed to raise it on his direct appeal, see Coleman v. Thompson, 501 U.S. 722 (1991), and that in any event, because the state court adjudicated this issue on the merits, its conclusion must be deferred to unless it can be characterized as "contrary to, or involv[ing] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
These procedural issues, as is often the case, do not admit of straightforward resolution. Because the Legal Aid Society represented Mayo at trial and on appeal, he had the same counsel on appeal as at trial. Under these circumstances, particularly where Mayo claims that appellate counsel rendered ineffective assistance in other respects, Mayo may be able to show cause for his procedural default. Moreover, it is not entirely clear that the state court adjudicated the claim at issue on the merits, as required for the heightened standard of deference prescribed by § 2254(d). See Cox v. Miller, 296 F.3d 89, 101 (2d Cir. 2002). Indeed, as the State itself argues, the court initially denied Mayo's § 440.10 motion on clear procedural grounds, addressing the merits only in passing. On reargument, the court reversed the priority, withdrawing one procedural ground, addressing the merits, and then asserting the other procedural ground as an alternative basis for its decision. Moreover, its decision on the merits did not clearly address those aspects of Mayo's argument highlighted in his federal petition.
Under these circumstances, rather than unravel the various procedural issues, this Court prefers to address the more straightforward questions presented by the merits of Mayo's petition, for Mayo's ineffective-assistance claim would fail even were the Court to review it de novo. See Cox, 296 F.3d at 101 (unnecessary to decide whether state court adjudicated claim on the merits where claim would fail whether reviewed under § 2254(d) or de novo); Washington v. Schriver, 255 F.3d 45, 55 (2d Cir. 2001) (same).
To establish a claim of ineffective assistance of counsel, a habeas petitioner must show that his counsel provided deficient representation, and that he suffered prejudice because of that representation. Strickland v. Washington, 466 U.S. 668 (1984). To determine whether counsel provided deficient representation, whether the "representation fell below an objective standard of reasonableness," id. at 688, "strategic choices made after thorough investigation of the law and facts relevant to plausible options are virtually unchallengeable." Id. at 690.
Mayo's argument that trial counsel should have insisted on his presence at the pretrial argument on his application for a physical examination of the victim lacks merit. The proceeding involved solely legal argument; no witnesses were examined, and guilt or innocence was not in question. Under these circumstances, Mayo's right, if any, to be present, is determined by the Due Process Clause. United States v. Gagnon, 470 U.S. 522, 526 (1985). "[A] defendant has a due process right to be present at a proceeding whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge," when "a fair and just hearing would be thwarted by his absence." Id. (internal quotation marks omitted). Due process does not, however, require a defendant's presence "when [his] presence would be useless, or the benefit but a shadow." Snyder v. Massachusetts, 291 U.S. 97, 106-07 (1934), overruled in part on other grounds, Malloy v. Hogan, 378 U.S. 1 (1964).
Here, the defendant's right, if any, to be present is only indirectly relevant. The state court did not deny any request by Mayo to be present at a proceeding. The question is whether trial counsel's failure to make such a request violated Mayo's Sixth Amendment right to the effective assistance of counsel. Even assuming arguendo that Mayo had a right to be present for the oral argument on his motion to compel a physical examination of the victim, whether to argue the motion in the defendant's absence or to seek an adjournment was a purely tactical decision. Mayo offers no reason why a reasonable lawyer would have elected to seek an adjournment, foregoing the opportunity to argue the motion immediately, rather than go forward in his client's absence. Absent some reason to believe that Mayo's presence would have made a difference, trial counsel's decision to waive her client's presence, avoid delay in resolving the motion, and expedite consideration of the defense's position, appears to have been a reasonable choice.
Moreover, even if it could be argued that reasonably competent counsel would not have waived Mayo's presence, Mayo cannot establish prejudice under Strickland. He suggests no reason, and the Court can conceive of none, why his presence at the proceeding would have made any difference to the outcome. Mayo, who has access to the transcript of this proceeding (see App., Ex. S at 3), does not question the State's assertions that the proceeding involved only "counsel restating the argument in support of the motion to compel a physical examination [that had already been] set forth in petitioner's moving papers"; that the prosecution did not respond; and that the Court denied the motion as a matter of law without finding any need for a factual inquiry or evidentiary hearing. (Resp. Br. 14.) Mayo's absence from this proceeding made no conceivable difference, and he therefore suffered no prejudice, even assuming arguendo that trial counsel should have insisted on his presence.
Mayo's claim that counsel should have renewed at trial the motion to compel a physical examination fares no better. Significantly, he does not claim, nor could he, that counsel failed to take steps to obtain this arguably exculpatory evidence. Trial counsel moved before trial for an order compelling the physical examination (App., Ex. A), but the court denied the motion. While it granted the defense leave to renew the application at trial, nothing happened at trial to develop a stronger case for granting the motion. Indeed, the state court that heard Mayo's § 440.10 post-trial motion agreed with the trial court's pretrial decision on the motion. (App., Ex. L at 3; Ex. Q at 2.) In keeping with the "never say die" spirit of the defense bar, counsel could, of course, have taken another shot with the trial judge. But her failure to do so cannot be deemed unreasonable. The decision whether to renew a motion that has already been denied presents a quintessential strategic choice, virtually immune from constitutional challenge. Strickland, 466 U.S. at 690.
The court acted well within its discretion in denying Mayo's motion, which sought a highly intrusive medical examination to develop evidence on a collateral matter relevant only to the credibility of the victim's denial of a sexual relationship with Mayo. See People v. Duncan, 13 N.Y.2d 37, 41 (1963). The motions judge's pretrial decision to reject Mayo's application was thus hardly surprising, and counsel had no reason to believe that the trial judge would reach a different conclusion.
Accordingly, Mayo's claim of ineffective assistance of trial counsel is rejected.
II. Ineffective Assistance of Appellate Counsel
Mayo argues that his appellate counsel was ineffective because he failed to argue that the prosecutor engaged in misconduct by submitting to the sentencing court victim-impact evidence in the form of a psychological report and certain drawings made by the child victim without the notice arguably required by N.Y. Crim. Proc. Law § 390.40(2).
The procedural posture of this claim is clear. Mayo properly raised it by a petition for a writ of error coram nobis in the Appellate Division, the appropriate means of presenting such a claim under state law. (App., Ex. S.) The Appellate Division denied this petition on the merits, ruling, clearly if briefly, that Mayo "failed to establish that he was denied the effective assistance of appellate counsel." People v. Mayo, 749 N.Y.S.2d 903, 903 (2d Dep't 2002), citing Jones v. Barnes, 463 U.S. 745 (1983); see Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001) (state court adjudicates a claim "on the merits" provided it "disposes of the claim `on the merits,'" and "reduces its disposition to a judgment"). The Court therefore cannot grant Mayo's petition for a writ of habeas corpus unless the Second Department's adjudication constitutes an unreasonable application of Supreme Court precedent. 28 U.S.C. § 2254(d)(1).
That standard cannot remotely be met here. On direct appeal, as at trial, a defendant has the right to the effective assistance of counsel, Evitts v. Lucy, 469 U.S. 387 (1985), and that right is violated where counsel's "representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688, and but for that deficient representation, "the result of the proceeding would have been different." Id. at 694.
Here, the Appellate Division cited the correct Supreme Court precedent. Jones v. Barnes held that an appellate lawyer does not have a duty to raise every colorable claim on appeal, but is entitled to determine which claims represent the defendant's best opportunities to obtain relief. 463 U.S. at 751-54. An appellate lawyer cannot be faulted as ineffective unless the petitioner establishes that he or she "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Here, appellate counsel vigorously challenged Mayo's conviction and the sentence, arguing that the jury rendered inconsistent verdicts, that a lesser-included offense instruction should have been given, and that the sentence was excessive. (App., Ex. C.)
In fact, in challenging Mayo's sentence, appellate counsel did raise, in substance, the very issue Mayo now contends should have been raised. He argued that the Appellate Division should exercise the discretion it enjoys under state law to modify sentences in the interest of justice. In support of that argument, counsel observed that Mayo had been sentenced to a term higher than 86.1% of similarly-situated defendants (that is, predicate felony offenders convicted of robbery) (id. at C18-19); that the jury's verdicts and a favorable polygraph result indicated doubts about the strength of the case (id. at C19-21); that Mayo's criminal record occurred long before the crime of conviction and should therefore not be deemed a strong aggravating factor (id. at C21); and that the prosecutor submitted the psychological report and the victim's daughter's drawings to the court without proper statutory notice, leaving the defense unable to refute the argument (id. at C22). Counsel specifically objected that this submission improperly influenced the sentencing court, arguing that the report inadequately explained its conclusion that Mayo bore responsibility for the daughter's psychological symptoms. (Id.)
Appellate counsel therefore effectively raised the very notice issue that Mayo now argues should have been a ground of appeal. It was an eminently reasonable strategic choice for counsel to package this argument as part of an overall attack on the procedural and substantive fairness of the trial court's sentence, in an effort to persuade the Appellate Division to reduce that sentence, rather than as a separate, technical attack on the prosecutor's conduct at sentencing. Mayo fails utterly to show that appellate counsel rendered ineffective assistance by presenting the issue one way rather than another. Nor does he come close to establishing any possibility that the outcome of his appeal would have been different had the argument been presented differently. Certainly, the Appellate Division's decision on Mayo's coram nobis petition, holding that counsel was not ineffective, cannot be deemed an unreasonable application of Supreme Court precedent.
Accordingly, Mayo's claim of ineffective assistance of appellate counsel is also rejected.
CONCLUSION
For the reasons stated above, Mayo's petition for habeas corpus is denied. As he has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253(c)(2); Lucidore v. New York State Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). The Court does, however, grant him permission to proceed in forma pauperis in any appeal he may seek to pursue.
SO ORDERED.