Opinion
No. 00 Civ. 8776 (RJH)(MHD).
August 14, 2006
MEMORANDUM OPINION AND ORDER
Petitioner Larry Nuetzel brings this habeas petition pursuant to 28 U.S.C. § 2254 challenging his state court conviction for one count of second-degree (felony) murder, one count of robbery in the first degree, and one count of criminal possession of a weapon in the second degree, crimes for which he is serving concurrent sentences that aggregate twenty-three years to life. In the petition, petitioner argues (1) that his arrest and the subsequent search of his apartment violated his Fourth Amendment right against unlawful searches and seizures and therefore the property seized and the statements made to the police should have been suppressed; and (2) that his trial attorney failed to provide effective representation, thereby violating his Sixth Amendment right to effective assistance of counsel.
On August 14, 2006 Magistrate Judge Michael H. Dolinger issued a Report and Recommendation (the "Report") recommending that the petition be denied in its entirety and dismissed with prejudice. Petitioner filed timely objections to the Report (the "Objection"), but for the reasons set forth below, the Court adopts the Report in its entirety and denies the petition.
BACKGROUND
The facts underlying petitioner's trial and incarceration are extensively outlined in the Report, which is attached to this opinion for ease of reference.
STANDARD OF REVIEW
A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten (10) days of service of the recommendation, any party may file written objections to the magistrate's report. Id. "If no objections are filed, or where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition, reviewing courts should review a report and recommendation for clear error." Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (internal quotation marks and citations omitted). "On the other hand, where objections to a report are `specific and . . . address only those portions of the proposed findings to which the party objects,' district courts should conduct a de novo review of the issues raised by the objections." Id. at 347 (quoting Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992)).
In his Objection, petitioner relies primarily on three arguments. First, petitioner argues that the trial court did not consider all the available evidence in making its ruling at the suppression hearing. (Objection 2.) Second, petitioner claims that, had the trial court been "properly supplied, at one given time, with [all the] facts as they now appear together," the trial court would have come to a different conclusion regarding the validity of his arrest and the subsequent search. ( Id. at 3.) When considered together, petitioner argues, his Fourth and Sixth Amendment claims support a new evidentiary hearing. ( Id.) Third, petitioner argues that his Fifth Amendment rights were violated because the indictment charged him with counts of both intentional and felony murder. This Fifth Amendment claim was never presented to the magistrate judge, nor was it raised in the instant petition or the underlying state proceedings.
Because petitioner's first and second arguments merely reiterate the claims made in his original petition, this Court reviews the Report for clear error and finds none. The Court separately concludes that petitioner has waived his Fifth Amendment claim which, in any event, is without merit.
DISCUSSION
Petitioner filed his habeas petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214 (April 24, 1996). Thus, this Court applies the standard of review established by Section 2254(d) of AEDPA. Torres v. Berbary, 340 F.3d 63, 67-68 (2d Cir. 2003); Vasquez v. Strack, 228 F.3d 143, 147 (2d Cir. 2000). Under AEDPA, a federal court may grant a petition for habeas corpus, notwithstanding contrary state court adjudication on the merits, in accordance with the following provisions:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any 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).
In response to petitioner's Fourth Amendment claim, that his arrest and the subsequent search of his apartment were invalid and the items seized from him should have been suppressed, the Magistrate Judge noted that Stone v. Powell, 428 U.S. 465 (1976), and its progeny prevent a federal court from granting a state prisoner federal habeas corpus relief "on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial" if the State "provided an opportunity for full and fair litigation of a Fourth Amendment claim." (Report 20) (quoting Stone, 428 U.S. at 494). A federal court may grant habeas relief on such a claim only in the rare case when petitioner can demonstrate either (1) that the state failed to provide a corrective process, or (2) that there was an "unconscionable breakdown" in the state procedures. See, e.g., Capellan v. Riley, 975 F.2d 67, 70-71 (2d Cir. 1992); Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc).
In this case, the trial court conducted a suppression hearing, during which defense counsel cross-examined each of the testifying police officers and offered evidence on behalf of his client. (Report 21.) The Appellate Division, First Department, affirmed the trial court's decision, holding that the trial court's assessment of the arrest and search was correct. ( Id.) Because petitioner was given the opportunity to fully litigate his Fourth Amendment claim in state court and could not demonstrate an "unconscionable breakdown" in the state's corrective procedures, the Magistrate Judge found that the federal court is without authority to revisit the Fourth Amendment claim. (Report 22.)
With regard to petitioner's claim that he was deprived of effective assistance of counsel in violation of the Sixth Amendment, the Magistrate Judge found this argument both procedurally barred and meritless. (Report 23.) Relying on N.Y. Crim. Proc. L. § 440.10(c)(2), the trial judge held that petitioner's second set of ineffective assistance of counsel claims was procedurally barred because petitioner failed to assert them on his direct appeal. (Report 23-24.) The Magistrate Judge found that this procedural bar "represents an independent and adequate state-law ground for rejecting the claim." (Report 24) (citing Glen v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996)). Where an independent and adequate state-law ground for dismissing a claim exists, petitioner is precluded from seeking federal habeas review unless he shows cause for the procedural default as well as prejudicial effect, Harris v. Reed, 489 U.S. 255, 262 (1989) (citing Murray v. Carrier, 497 U.S. 478, 485 (1986)); or if he can demonstrate that a failure to consider his claim will result in a fundamental miscarriage of justice, Edward v. Carpenter, 529 U.S. 446, 451 (2001). Because petitioner could not demonstrate cause for his state-court procedural default and prejudice from the asserted constitutional violation, nor could he show that a failure to consider the merits of his claim would be a fundamental miscarriage of justice, the Magistrate Judge found that the Sixth Amendment claim is procedurally barred. (Report 25-27.) The Magistrate Judge also found that petitioner is unable to demonstrate either that his attorney performed in a deficient manner or that his attorney's performance caused him prejudice. (Report 31.)
With respect to his Fifth Amendment claim, petitioner did not raise this claim in his original habeas petition, and may not raise it for the first time in his Objection to the magistrate's Report. See Chisolm v. Headley, 58 F. Supp. 2d 281, 284 n. 2 (S.D.N.Y. 1999) (citing Harris v. Pulley, 885 F.2d 1354, 1377-78 (9th Cir. 1988)); McPherson v. Johnson, 1996 WL 706899, at *2 (S.D.N.Y. Dec. 9, 1996) ("Petitioner cannot raise, in his objection to the Magistrate Judge's Report, new claims not raised in his initial petition." (citation omitted)); Jerrel v. Keane, 1995 WL 653369, at *2 (S.D.N.Y. Nov. 6, 1995) ("Jerrel cannot raise for the first time in his objections to the [Magistrate's] Report an issue that was not raised in his initial petition."). Moreover, petitioner did not present a double jeopardy claim to the state court, and petitioner's claim is procedurally barred from federal habeas review unless petitioner can show cause for the failure to raise the claim and prejudice arising from the alleged constitutional violation. See Coleman v. Thompson, 501 U.S. 722, 750 (1991). Petitioner cannot show prejudice because his double jeopardy argument is without merit. See U.S. ex rel. Richards v. Bartlett, No. 92-2448, 1993 WL 372267, at *6-*7 (E.D.N.Y. Sept. 9, 1993) (finding that, because N.Y. Penal Law § 125.25(1) (McKinney 1987) (intentional murder) and N.Y. Penal Law § 125.25(3) (McKinney 1987 and Supp. 1993) (felony murder) do not constitute the same offense, an indictment charging a defendant with both counts of murder did not subject the defendant to double jeopardy).
CONCLUSION
For the reasons set forth above, the Report and Recommendation of Magistrate Judge Michael H. Dolinger recommending dismissal of petitioner's Fourth and Sixth Amendment claims is adopted in its entirety. In addition, the Court dismisses petitioner's Fifth Amendment claim due to his failure to raise this claim in his underlying petition or before the Magistrate Judge; the Court additionally finds that the Fifth Amendment claim is procedurally barred and without merit. Accordingly, the petition of Larry Nuetzel for a writ of habeas corpus is dismissed with prejudice. The Clerk of the Court may close the case.
SO ORDERED.
REPORT RECOMMENDATION
Petitioner Larry Nuetzel seeks a writ of habeas corpus to challenge his 1994 conviction in New York State Supreme Court, New York County, on single counts of second-degree (felony) murder, first-degree robbery and second-degree criminal possession of a weapon. The trial court sentenced Nuetzel to concurrent prison terms that aggregated twenty-three years to life. He is currently serving that sentence.Petitioner presses two sets of claims in support of his petition. First, he challenges the validity of his arrest and the resultant search of his apartment, and thus contends that property seized from him and statements that he subsequently made to the police should have been suppressed. Second, he asserts that his trial attorney failed to provide effective representation in a variety of ways. Respondent opposes the application, contending that Nuetzel's first claim is barred byStone v. Powell, 428 U.S. 465 (1976), and that both sets of claims are meritless.
For reasons that follow, we recommend that the writ be denied and the petition dismissed with prejudice.
A. Prior Proceedings
Nuetzel's conviction stemmed from the armed robbery of a restaurant on 40th Street in Manhattan, during the course of which the robbers bound, gagged and shot the restaurant manager. On the same day the police arrested petitioner and two other men — Guillermo Mata and Eric Mendoza — in connection with the crime. At the time of petitioner's arrest, the police recovered two ski masks from his apartment, together with a distinctive pair of pants that petitioner was said to have worn during the robbery. As for the fourth robber, the police arrested Mendoza's cousin, Francisco Mendoza, several weeks later.
A New York County grand jury returned an indictment charging Nuetzel, Mata and Eric Mendoza with single counts of intentional and felony murder, two counts of first-degree robbery, and single counts of second- and third-degree weapons possession. (Resp's Ex. B at 2). Francisco Mendoza, who was arrested later, was charged in a separate indictment with the same crimes. (Id. at 2 n. *).
Nuetzel and his co-defendants moved prior to trial to suppress his statements to the police, the physical evidence seized from his apartment and identification testimony. (Omnibus Motion — annexed to Amended Petition ("Am. Pet.")). The motion triggered a suppression hearing before the Hon. Michael Obus, S.C.J., who denied the motion at the conclusion of the hearing. (Resp's Ex. B at 2). Following that hearing, petitioner's co-defendant Mata pled guilty to lesser charges.
Mata pled to one count of first-degree manslaughter, two counts of first-degree robbery, single counts of second- and third-degree robbery, and one count of second-degree weapon possession. He was sentenced to concurrent prison terms aggregating five to ten years. (Resp. Ex. B at 2 n. **).
Petitioner went to trial separately before Justice Obus and a jury, commencing on June 6, 1994. At trial, Mata testified for the State, and he described in detail the plans of the four men to rob a restaurant named Giggles, at which Eric Mendoza worked as a busboy. In addition, the State offered petitioner's written and videotaped statements, in which he also described the events of the evening, including his role in the robbery and shooting death of the manager.
Eric and Francisco Mendoza were both convicted after separate trials. Eric Mendoza was convicted of one count of second-degree murder, two counts of first-degree robbery and one count of second-degree weapons possession. He was sentenced to concurrent terms aggregating twenty-three years to life. (Id. at 2 n. **).
Francisco Mendoza was convicted of two counts of second-degree murder, two counts of first-degree robbery, and one count of second-degree weapons possession. The court sentenced him to an aggregate term of twenty-five years to life. (Id.).
According to Mata's account, Eric Mendoza proposed the plan for a late-night robbery of the restaurant where Mendoza worked as a busboy. The plan involved tying up the manager and stealing the money that would be stored in the safe. Mata was to drive the car, and Eric Mendoza would secrete Nuetzel and Francisco Mendoza in the back room where the safe was located. Once the manager opened the safe, Francisco would take the money. (Tr. 250-57).
In Mata's account — much of which was corroborated by Nuetzel's videotaped confession — the three men traveled by car to the restaurant on the evening of January 29, 1993. Francisco Mendoza had a loaded .357 magnum revolver, which he displayed to the other men during the ride. Francisco had duct tape and both he and Nuetzel had ski masks. In addition, when they parked Francisco and Nuetzel purchased a pair of handcuffs. Mata initially stayed with the car, while Francisco and Nuetzel went separately into the restaurant in the guise of customers. (Tr. 257-62, 266B-266C).
Petitioner's videotaped confession was played for the jury. The substance of that statement is recounted in the State's appellate brief. (See Resp's Ex. B at 27-30. See also id. at 16-19). The petitioner's written statement also substantially parallels the account offered by Mata. (See Tr. 364-65, 397-401).
Nuetzel's statement and the testimony of various restaurant workers confirmed that Francisco and petitioner were seated in the restaurant, and that Mata and Eric Mendoza at some point joined them. (Tr. 101-04; Resp's Ex. B at 28). Subsequently, Mata left the restaurant. (Tr. 266B). According to petitioner's confession, Eric then led Nuetzel and Francisco into an upstairs back room where the safe was located, and they hid there. At the time Francisco was holding his gun, the duct tape and a pair handcuffs. (Resp's Ex. B at 18, 28. See also Tr. 364-65, 397-401).
According to petitioner's confession, at about midnight the restaurant manager, George Kaplan, and the bartender, Harris Alexander, brought the cash from the evening into the room. After Alexander left the room, Kaplan opened the safe. At that point Francisco came out from hiding and hit Kaplan in the head with his gun. Nuetzel ordered Kaplan to lie on the ground, which he did, and petitioner handcuffed him and taped his mouth shut. As petitioner was doing so, however, Francisco fired a single shot from short range into Kaplan's head, apparently killing him. (Resp's Ex. B at 28-29, 18-19; Tr. 364-65, 397-401).
The two men then left the room, taking the money from the safe. Nuetzel came downstairs wearing a ski mask and holding the gun. He confronted the bartender, forced him to lie on the ground along with other restaurant workers, and threatened to kill him. Nuetzel and Francisco then forced the workers (including Eric Mendoza) into the kitchen, and Nuetzel took $300.00 from the bartender. (Tr. 116-20; Resp's Ex. B at 29; Tr. 364-65, 397-401).
Nuetzel and Francisco then left the restaurant and joined Mata. Nuetzel disposed of the gun by dropping it down a water drain, and since Mata had lost the car keys, the three took a subway to petitioner's apartment, where they divided the money. Mata asked them to keep the share designated for him and for Eric Mendoza, and they put it in a bag under the staircase in the basement. (Tr. 271-80; Resp's Ex. B at 29; Tr. 364-65, 397-401).
Police witnesses recounted being called to the scene and discovering Kaplan's body. (Tr. 168-74). The police interviewed restaurant personnel (including Eric Mendoza) at the police precinct. Eric soon admitted his participation in the robbery and identified Mata as an accomplice. (Tr. 178-79, 181-82). While the interviews were ongoing, Mata arrived at the precinct and was promptly arrested, following which he too admitted his role in the crime. (Tr. 183, 186-87, 280-83). Mata later took a police detective to the drain where the gun had been discarded, and the detective retrieved the .357 revolver, with a spent cartridge and two unused bullets. (Tr. 283, 496-53).
Later that day, Mata led the police to his own apartment in Brooklyn, where they recovered $1,010.00 from the robbery in a paper bag. (Tr. 189-91, 330-34, 505, 507-10). He then took the police to petitioner's nearby apartment, where the officers repeatedly knocked on the front door and announced their presence. After an extended interval during which the police heard voices from within the apartment, Nueztel called out that he intended to come out of the apartment, which he then did. The police promptly arrested him and searched the apartment, in which they found two ski masks and a pair of red or orange pants, which matched the pants that Mata had recalled Nuetzel wearing on the occasion of the robbery. (Tr. 333-37, 339-40, 510, 514-21).
At the precinct, after receiving Miranda warnings, Nuetzel made an oral narrative confession that tracked Mata's account of the plans for the robbery and the drive to the restaurant. Nuetzel also described the role of Eric Mendoza in hiding him and Francisco Mendoza, and he recounted the shooting of the manager, the seizure of the money and the robbers' departure. At the request of the police, he then prepared and signed his own written statement, which was received in evidence at the trial. That statement reiterated in substantial measure the information already known to the police from Mata. Nuetzel also reported that he had accepted only one hundred dollars from the proceeds of the robbery. (Tr. 351-54, 356-57, 360-62, 364-65, 397-401).
Shortly thereafter, Nuetzel made a videotaped statement in the presence of an Assistant District Attorney. (Tr. 402). That statement was consistent with his written statement and was played for the jury. (See Resp's Ex. B at 27-29; Tr. 402-05).
The State also called a medical examiner to recount the results of the autopsy on George Kaplan. The doctor testified that Kaplan's death had been caused by a bullet fired from only two inches from his head. (Tr. 480-86). A police ballistics expert also testified, and confirmed that the bullet that had killed Kaplan had been fired from the .357 gun recovered from the drain. (Tr. 467-73).
Petitioner testified in his own defense. He denied any involvement in, or knowledge of, the robbery. He claimed that he had been drinking heavily on the night in question, and had been with friends. He also insisted that when the police had come to his apartment, they had forced their way inside, repeatedly hit him and demanded that he confess to a killing about which he knew nothing. He asserted that after being taken to the precinct and being repeatedly struck and threatened by the police detectives, he agreed to confess to whatever they wanted. According to Nuetzel, one of the detectives dictated the substance of his written confession but told him to use his own words to repeat the specified facts. Petitioner also insisted that, when doing so, he thought that he was admitting his guilt only of robbery and not of murder, since he was not confessing that he had actually pulled the trigger. (Tr. 694-96, 700-12, 756-60).
He confirmed also making the videotaped statement, but claimed that he had simply repeated what he had said in the written statement because he was afraid of the detective. (Tr. 713-15). He asserted as well that he had never met Mata, or Eric and Francisco Mendoza. (Tr. 693-94).
Nuetzel also called his brother, Christopher Niola, to testify at trial. Niola reported that Nuetzel had come back to the apartment that they shared after midnight on January 30 (that is, shortly after the robbery) with a friend and that Nuetzel was very drunk. (Tr. 619). Niola also testified that he had been in the apartment when the police arrived, that the police had searched the apartment and taken a mask that he used when riding his bicycle, and that the officers had been extremely hostile, even to the point of slapping him and a friend who was also present there at the time. (Tr. 624-25, 628).
In rebuttal, the State called several police detectives. They testified that the police detective who had obtained the confession from Nuetzel — Det. Briecke — had not known the details of statements previously made by Mata and by Eric Mendoza when he interviewed petitioner. (Tr. 872-74, 881-85). They also denied that any physical abuse had been used against Neutzel, either at the time of his arrest or later on. (Tr. 887-88, 909, 911-12, 917). Finally, one detective testified that he had attempted to contact several individuals whom Nuetzel had identified at trial as friends who could support his claim of innocence, and that the addresses supplied by petitioner were non-existent. (Tr. 870-71).
The detectives did report that when Nuetzel stepped into the hallway, they had seized him and pushed him back into the apartment because they did not know whether other people were in the apartment and they thought that it would be easier to control the situation from inside the apartment. (Tr. 908).
At the conclusion of the trial, the jury acquitted Nuetzel of intentional murder, but convicted him of felony murder, and of single counts of first-degree robbery and second-degree weapon possession. (Tr. 1234, 1237-42). On August 1, 1994, the trial court sentenced Neutzel to a term of twenty-three years to life on the murder conviction and to concurrent terms of eight and one half to twenty five years and five to fifteen years on the other charges. (S.Tr. 12).
The jury could not reach a verdict on a second count of first-degree robbery. (Tr. 1238, 1243-44).
Petitioner filed an appeal from his conviction to the Appellate Division, First Department. On that appeal he raised four grounds for reversal. He claimed (1) that the trial court had erred in denying his motion to suppress because the police had invaded his apartment without a warrant and arrested him there, (2) that the court had improperly allowed the prosecutor to present rebuttal testimony on a collateral issue (that is, the addresses of petitioner's friends), (3) that the prosecutor had engaged in various forms of misconduct at trial, and (4) that his sentence was excessive. (Resp's Ex. A at 36-51).
The Appellate Division affirmed the conviction on January 29, 1998. In doing so, it explicitly addressed the Fourth Amendment argument, holding that the trial court had properly determined that petitioner had voluntarily exited his apartment and that the police had arrested him in the hallway. It also upheld the trial court's finding that the police had permissibly entered the apartment and conducted a limited protective sweep, especially in view of the fact that they had reason to be concerned that the fourth robber, who had not yet been apprehended, might be hiding there. The panel also concluded that the cited instances of alleged prosecutorial misconduct had not denied Nuetzel a fair trial, especially in view of the court's timely utilization of curative instructions. Finally the court found no abuse in sentencing and rejected the balance of petitioner's arguments as meritless. People v. Neutzel, 246 A.D.2d 477, 477-78, 667 N.Y.S.2d 749, 749 (1st Dep't 1998).
Petitioner sought leave to appeal from that decision to the New York Court of Appeals. That court denied his application on June 8, 1998. People v. Neutzel, 92 N.Y.2d 857, 677 N.Y.S.2d 88 (1998).
On March 12, 1998, while his leave application was pending before the Court of Appeals, Nuetzel filed a section 440.10 motion before the trial court to vacate his conviction on the asserted ground that he had been denied the effective assistance of trial counsel. In support of this motion, petitioner articulated three complaints about his attorney's performance. First, he criticized the attorney for not making an issue of the asserted fact — first mentioned in petitioner's omnibus motion — that one or more police officers had "harassed" the lawyer at a pretrial line-up. According to Nuetzel, if his counsel had provided additional details to the prosecutor or the court, it might have influenced the court's assessment (and perhaps the jury's) of the credibility of petitioner's testimony that the police had mistreated him as well. (§ 440.10 Motion at pp. 3-5 — annexed to Am. Pet.).
Petitioner appended a copy of this motion to his amended petition.
Petitioner attached a copy of the omnibus motion to his amended petition. In that document his attorney reported that when he visited the police precinct to observe a lineup, one or several police officers expressed hostility to him and one "also either accidentally or intentionally shoved me." (Omnibus Motion — Affidavit of David Blackstone, Esq., sworn to April 13, 1993 at p. 5).
Second, petitioner argued that counsel had failed to provide adequate representation because he did not present evidence demonstrating that tests of Neutzel's orange pants had proven negative for the presence of blood and gunpowder. Third, he complained that his attorney had not objected to his being required to stand in front of the jury to display his "distinguishing" tattoos, following which Mata described the tattoos of his accomplice, thus effectively providing identification testimony. According to petitioner, this sequence violated the trial court's prior order that the State could not offer any identification testimony at trial. (Id. at pp. 5-7).
Justice Obus denied the motion in a written opinion issued on December 21, 1998. The court emphasized that petitioner bore a heavy burden to demonstrate that the attorney's performance was so inadequate as to deny him his constitutional right to effective representation. He concluded that Nuetzel had failed to do so, and that his trial lawyer had performed effectively in all phases of the trial, and had even obtained an acquittal on the top murder charge. (Resp's Ex. E — Opinion at third page). As for the specific critiques with which Nuetzel targeted his attorney, the court rejected each one.
Addressing the alleged mistreatment of the lawyer at the lineup, Justice Obus noted that petitioner had not offered any evidence that the offending officers were the same ones as had dealt with petitioner. (Id. at second page). With regard to the test results on petitioner's pants, the court observed that no evidence had been offered to suggest that the results had been positive or that there was blood or gunpowder residue on petitioner's pants, and hence the failure to bring out the negative test results was inconsequential. (Id.). Finally, the court pointed out that petitioner's identification argument rested on a misunderstanding of the court's pretrial ruling. The court had not precluded all identification testimony at trial. Rather, it turned out that no witnesses had been able to identify petitioner at a lineup, and hence there was no identification evidence from them that would have been admissible. The only witness able to identify petitioner was Mata, and there was no court prohibition on his identification testimony. (Id. at third page).
Petitioner sought leave to appeal from this decision to the Appellate Division. In that application he reiterated the arguments that he had pressed before the trial court and also suggested that his trial attorney should have been a witness at the suppression hearing and the trial. (See Leave Application (Memo of Law) — annexed to Am. Pet.). The appellate court denied his application on September 16, 1999. (Resp's Ex. F).
Having been rebuffed by the state courts, Nuetzel turned to this court, filing a petition for a writ of habeas corpus. In his original petition, Nuetzel challenged the Fourth Amendment rulings of the state courts. He also argued that he had been denied the effective assistance of trial counsel because the attorney, as the victim of police abuse at the lineup, should have served as a corroborative witness for petitioner at the suppression hearing and at trial.
Prior to the filing of opposition papers by respondent, petitioner asked to stay this habeas proceeding to permit him to return to state court to exhaust additional claims that he wished to pursue here. Relying upon the Second Circuit's holding inZarvela v. Artuz, 254 F.3d 374, 379 (2d Cir. 2001), the court granted his request by order dated June 15, 2004. See also Nuetzel v. Walsh, 2004 WL 96429 (S.D.N.Y. May 5, 2004).
Nuetzel returned to the trial court and filed his second section 440.10 motion to vacate. (Resp's Ex. G; § 440.10 Motion — annexed to Am. Pet.). He again attacked the performance of his trial attorney, complaining that the lawyer had not invoked the statutory affirmative defense to felony murder and had not sought to preclude the submission of both the intentional-murder and the felony-murder counts to the jury.
By decision dated November 9, 2004, the trial court denied the motion. (Resp's Ex. I). In doing so, the court concurred with the State's argument that Nuetzel's latest Sixth Amendment theories could have been raised on his direct appeal, and that that fact indicated that the court could not address the merits of the claim under the terms of section 440.10((2)(c). (Id. at 3).
The court noted that "to the extent that the defendant's arguments of ineffective assistance of counsel are based on the same record that was before the Appellate Division on direct review, they are not properly raised in the instant motion." (Op. at 3). The court then went on to confirm that Nuetzel was in fact relying entirely on that same record. (Id.) ("[T]he record here has not been expanded in any way. Notably the defendant has presented no additional factual allegations and he has not submitted an affirmation from his trial counsel that might shed light counsel's tactical decisions.").
In the alternative, Justice Obus concluded that petitioner's criticisms of the lawyer were baseless. Thus he noted that the overwhelming proof at trial — including eyewitness testimony, accomplice testimony and petitioner's own confessions — was ample to permit submission of both intentional-murder and felony-murder charges to the jury. Hence there would have been no basis for counsel to object. (Id. at 4-5).
The court also rejected petitioner's attempt to excuse his use of a second section 440.10 motion based on the claim of new law, and it held that the decision cited by petitioner for this contention — People v. Gonzalez, 302 A.D.2d 870, 755 N.Y.S.2d 146 (4th Dep't 2003), aff'd, 1 N.Y.3d 464, 775 N.Y.S.2d 224 (2004) — did not create new law and did not even relate to the substantive issues that Nuetzel was raising on his motion. (Resp's Ex. I at 4).
The judge also concluded that the attorney's decision not to pursue a felony-murder affirmative defense was entirely reasonable. That defense requires proof that the defendant "was not armed with a deadly weapon . . . and had no reasonable ground to believe that any other participant was armed with such a weapon." N.Y. Penal Law § 125.25(3)(a). Since the evidence at trial made plain not only that petitioner knew that Francisco Mendoza had a firearm, but that he himself used the gun during the robbery, such a defense would have been utterly futile. Indeed, that futility was confirmed by the jury's verdict convicting petitioner on the weapon-possession charge. Instead, as the judge noted, the lawyer sensibly pursued an alternative strategy of trying to create doubt as to whether Nuetzel had been involved in the robbery, an approach that rested on his client's own testimony, cross-examination to raise doubts as to the credibility of the prosecution witnesses (notably Mata) and that included successful requests for instructions on the alibi defense, identification testimony and accomplice testimony. (Resp's Ex. I at 4-6).
Petitioner sought once again to obtain leave to appeal to the First Department. (Leave Application: Memo of Law May 4, 2005 Reply Letter from Larry Nuetzel to App. Div. — annexed to Am. Pet.) Once again, however, that court denied his application, on February 9, 2005. (Resp's Ex. J).
Petitioner subsequently returned to this court and amended his petition to assert the Sixth Amendment complaints that he had just previously aired before Justice Obus. Respondent has since opposed petitioner's amended habeas petition. ANALYSIS
There is an ambiguity in Nuetzel's amended petition as to whether he seeks to assert new claims in addition to the ineffective-assistance theories that he presented in state court on his second section 440.10 motion. The amended petition, in describing the grounds that petitioner wishes to assert, simply refers to his direct appeal brief and both of his section 440.10 motions. The ambiguity resides in the fact that, in Nuetzel's original habeas petition, he did not press all of the claims and arguments that he had pursued on his direct appeal or his first section 440.10 motion (including additional theories of ineffective assistance and claims for prosecutorial misconduct, an impermissible rebuttal case by the State and an assertedly excessive sentence). It is not clear whether he is now seeking to raise these issues by his amended petition.
The short answer is that he may not pursue these added theories now. The only amendment that he was permitted to make in this case was to add claims that he had newly asserted in his second section 440.10 motion, and for that reason — if no other — we do not address claims that he raised on his direct appeal but did not mention in his original habeas petition. We also note that any such claims would be time-barred under 28 U.S.C. § 2244(d), and their inclusion in an amended petition would not relate back to the filing of the original petition under Fed.R.Civ.P. 15(e) because they do not involve the same transactions or occurrences as the claims asserted in that first petition. See, e.g., Mayle v. Felix, 125 S.Ct. 2562, 2570-74 (2005).
Nuetzel currently pursues a claim for violation of his Fourth Amendment rights and a separate contention that his trial lawyer failed to provide constitutionally adequate representation. We address these arguments in the order in which he presents them.
A. The Fourth Amendment Claim
Petitioner's first claim is that, contrary to the finding of the suppression hearing court, the police entered his apartment without consent and arrested him there without a warrant. Petitioner maintains that this arrest was illegal, presumably under Payton v. New York, 445 U.S. 573 (1980), and that the items seized from him incident to the arrest should have been suppressed. He also may be understood to challenge the validity of the search even if his arrest was lawful. We cannot review this claim in view of the holding of Stone v. Powell, 428 U.S. 465 (1976), and its progeny.
See Omnibus Motion — Blackstone Aff. at pp. 5-6.
Under Stone, Fourth Amendment claims are ordinarily beyond the reach of habeas review: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial."Id. at 494. Accord, Capellan v. Riley, 975 F.2d 67, 69-72 (2d Cir. 1992); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991);Jackson v. Scully, 781 F.2d 291, 297 (2d Cir. 1986) (citing cases). The only exception to this rule is the rare case in which a petitioner can demonstrate that the state failed to provide a corrective process, or that there has been an "unconscionable breakdown" in the otherwise available state procedures. See, e.g., Capellan, 975 F.2d at 70-71; Gates v. Henderson, 568 F.2d 830, 840 (2d Cir. 1977) (en banc).
The Second Circuit has long held that Article 710 of the New York Criminal Procedure Law — which provides a statutory mechanism to suppress unlawfully-obtained evidence — constitutes a facially adequate mechanism for considering Fourth Amendment defenses in criminal proceedings. See, e.g., Capellan, 975 F.2d at 70 n. 1; Jackson, 781 F.2d at 297; McPhail v. Warden, Attica Corr. Facility, 707 F.2d 67, 69 (2d Cir. 1983); Gates, 568 F.2d at 837. Petitioner also cannot show an "unconscionable breakdown" in this procedure, an exception that cannot be invoked simply to correct an erroneous state-court constitutional ruling. See, e.g., Capellan, 975 F.2d at 70-72; Gates, 568 F.2d at 840.
There is no serious dispute that petitioner was afforded a full and fair opportunity to litigate his claim in the state courts. The trial court conducted a suppression hearing, at which defense counsel cross-examined each of the testifying police officers and offered evidence on behalf of his client. The hearing court then rendered a reasoned decision that found, based on the evidence, that Nuetzel had voluntarily opened his door and gone into the hallway, that the police had arrested him there, and that the police had thereafter conducted only a limited protective sweep of areas of the apartment in which they reasonably feared that one of petitioner's colleagues — possibly armed and certainly dangerous — might be hiding. Based on those findings, the hearing court concluded that the arrest and search had not trenched on petitioner's Fourth Amendment rights.
Petitioner also pursued appellate review of this decision by the First Department, and that court affirmed the trial court's decision, holding that, based on the hearing record, the trial court had been correct in its assessment that the arrest was lawful and the search permitted as a protective sweep. In addition, petitioner exercised his right to request leave to appeal to the New York Court of Appeals on the basis of this Fourth Amendment argument.
Under these circumstances, we conclude that petitioner had ample opportunity to litigate his Fourth Amendment claim in state court. We therefore have no authority to revisit the issue.See, e.g., Skinner v. Duncan, 2003 WL 21386032, at *14 (S.D.N.Y. June 17, 2003) (quoting Stone, 428 U.S. at 494-95) (citing cases).
B. The Sixth Amendment Claim
Petitioner next complains, as he did before the state courts on his two section 440.10 motions, that he was deprived of the effective assistance of counsel in a variety of respects. Specifically, he criticizes his attorney's failure to make a more substantial record of his encounter with the police at a pretrial lineup and to serve as a witness on the subject at the suppression hearing and at trial. He also complains, in the amended version of his petition, that trial counsel did not invoke the statutory affirmative defense to felony murder and did not object to the submission of both intentional — and felony-murder charges to the jury.
As we have noted, the amended petition is somewhat unclear in specifying which grounds it is raising, since Nuetzel refers generically to his appellate brief and his two section 440.10 motions. See pp. 18-19, n. 10, supra. This ambiguity extends not only to the three claims asserted on petitioner's direct appeal that he did not mention in his original habeas petition, but also to the particulars of his Sixth Amendment claim. In his first section 440.10 motion, he claimed ineffective assistance on a variety of grounds, including the attorney's failure to proffer evidence about negative forensic tests on petitioner's clothing and counsel's acquiescence in the corporeal display of petitioner to the jury for identification purposes, as well as his failure to pursue alleged police misconduct against him at the lineup. In the original petition, however, Nuetzel mentioned only the lineup issue. Based on this sequence we infer that he seeks by his amended petition to pursue only the complaints about his lawyer that he articulated in the original petition and in his most recent section 440.10 motion. Nonetheless, in an excess of caution we refer briefly in the following discussion to the other Sixth Amendment theories that he pressed in state court.
Petitioner's second set of Sixth Amendment claims is procedurally barred, and all of petitioner's complaints about his attorney are entirely meritless.
1. Procedural Bar
As noted, when petitioner filed his second section 440.10 motion, the trial judge held that his ineffective-assistance theories were procedurally barred because Nuetzel could have asserted them on his direct appeal and failed to do so. That ruling was mandated by N.Y. Crim. Proc. L. § 440.10(c)(2), which prohibits the trial court from reviewing the merits of any claim that was available to the defendant on direct appeal and that he failed to raise at that time.
Although ineffective-assistance claims are properly reserved for a section 440.10 motion when they depend on facts outside the record available on direct appeal, see, e.g., People v. Brown, 45 N.Y.2d 852, 853-54, 410 N.Y.S.2d 287, 287 (1978), petitioner's arguments about the felony-murder defense and the submission of both murder charges to the jury rested entirely on the trial record.
That finding by itself represents an independent and adequate state-law ground for rejecting the claim. See, e.g., Glen v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996). It is independent since it rested entirely on the New York statutory bar, and it is "adequate", see generally Cotto v. Herbert, 331 F.3d 217, 239-41 (2d Cir. 2003), since it rests on an explicit statutory prohibition against merits review of any claim that could have been raised on the petitioner's direct appeal. N.Y. Crim. Proc. L. § 440.10(c) (2).
Although Justice Obus also noted, in the alternative, that Nuetzel's murder claims were meritless, that observation does not relieve petitioner from the consequences of his attorney's failure to assert these claims on direct appeal. See, e.g., Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999).
The adequacy of a waiver finding is determined by whether the state courts have, with some consistency, enforced a rule of waiver in like circumstances in other cases. See, e.g., Cotto, 331 F.3d at 239-41; Wedra v. Lefevre, 988 F.2d 334, 339-40 (2d Cir. 1993).
In these circumstances, the habeas court may not address the claim unless the petitioner can either demonstrate cause for his state-court procedural default and prejudice from the asserted constitutional violation, or else show that a failure to consider the merits of his claim would constitute a fundamental miscarriage of justice. See, e.g., Lambrix v. Singletary, 520 U.S. 518, 522-23 (1997); Coleman v. Thompson, 501 U.S. 722, 729-30, 750 (1991); Sweet v. Bennett, 353 F.3d 135, 139-40 (2d Cir. 2003); Cotto, 331 F.3d at 238. Petitioner fails even to attempt to make any such showing, and it necessarily follows that the claim is procedurally barred.
To show cause, petitioner must prove that "some objective factor external to the defense impeded [his] counsel's efforts to comply with the State's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). For example, petitioner might make "`a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that "some interference by state officials" made compliance impracticable. . . .'"Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quotingMurray, 477 U.S. at 488) (internal citations omitted). The denial of effective assistance of counsel, if it led to the default, is also recognized as "cause" for purposes of procedural-bar analysis. See, e.g., Coleman, 501 U.S. at 753-54; Murray, 477 U.S. at 488; Restrepo v. Kelly, 178 F.3d 634, 640 (2d Cir. 1999). To invoke such a Sixth Amendment argument as cause, however, petitioner must first assert it as an independent claim in state court and exhaust his remedies there. See, e.g., Edwards v. Carpenter, 529 U.S. 446, 451-52 (2000); Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir. 1997) (discussing Murray, 477 U.S. at 488-89).
Petitioner has not demonstrated cause for his default in state court. Nothing prevented his appellate attorney from pressing in the Appellate Division a claim of ineffective assistance of trial counsel based on the felony-murder and intentional-murder theories that petitioner now espouses.
The possible use of a Sixth Amendment argument for cause fails as well. Petitioner does not argue in this proceeding that his state appellate lawyer denied him effective representation. Moreover, he could not make such an argument here, both because he never asserted such a claim in state court, and because there is no indication that his very competent lawyer performed other than professionally.
Indeed, Justice Obus's dissection of the lack of merit to the claims that Nuetzel thinks his trial lawyer should have pressed amply demonstrates that his appellate attorney properly focused on other issues.
Apart from failing to satisfy the cause-and-prejudice test, Nuetzel also cannot demonstrate that a refusal to consider his new Sixth Amendment theories would constitute a fundamental miscarriage of justice. That exception is reserved for the "extraordinary case, where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Sawyer v. Whitley, 505 U.S. 333, 339 n. 6 (1992) (quoting Murray, 477 U.S. at 496); Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994); Washington v. James, 996 F.2d 1442, 1447 (2d Cir. 1993). More specifically, the petitioner "must establish that, in light of new evidence, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt.'" House v. Bell, 126 S.Ct. 2064, 2076-77 (2006) (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)).
Petitioner cannot meet this very demanding standard. The evidence at trial overwhelmingly demonstrated that Nuetzel had willingly and actively participated in an armed robbery, that he knew beforehand that one of his accomplices was carrying a loaded firearm, and that even after the accomplice had shot and killed the restaurant manager petitioner took the gun and used it to threaten other restaurant employees and to steal more money from the bartender. From this evidence there is no reason to infer that Nuetzel was "probably innocent" — whether of felony murder or of any other of the other charges on which he was convicted — much less that the conviction was caused by a purported error by his trial lawyer in not invoking a felony-murder affirmative defense or in arguing against submission of both murder counts to the jury.
2. The Merits of Petitioner's Sixth Amendment Claims
The balance of petitioner's attack on his attorney's performance is plainly meritless. Moreover, for reasons noted, even if we considered the merits of his defaulted claims, the result would not change.
(a) Legal Criteria
To demonstrate a Sixth Amendment violation, the petitioner must show that his lawyer's performance was "so defective that `counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment' . . . and that counsel's errors were `so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'" Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). As summarized in Brown:
To satisfy the first, or "performance," prong, the defendant must show that counsel's performance was "outside the wide range of professionally competent assistance,". . . and to satisfy the second, or "prejudice," prong, the defendant must show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 79-80 (quoting Strickland, 466 U.S. at 690, 694).Accord, e.g., Henry v. Pool, 409 F.3d 48, 62-64 (2d Cir. 2005); Cox v. Donnelly, 387 F.3d 193, 197 (2d Cir. 2004).
It bears emphasis that the Strickland standard is quite deferential, and that a claim of constitutional dimension does not arise unless a lawyer's error is so egregious as to amount to a failure to provide minimal professional representation. Thus, in weighing an ineffective-assistance claim the court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct . . ." and must "determine whether, in light of all the circumstances, . . . [counsel's] acts or omissions were outside the wide range of professionally competent assistance."Strickland, 466 U.S. at 690. Accord, e.g., Loliscio v. Goord, 263 F.3d 178, 192 (2d Cir. 2001). In making this determination, "the court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690.
The burden of proving prejudice is equally onerous. As noted, the petitioner must demonstrate "a reasonable probability" that, but for counsel's unprofessional errors, the result of the proceeding would have been different. "A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal." Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) (citing Strickland, 466 U.S. at 694).
(b). Assessment of Petitioner's Claim
Nuetzel argues that his attorney either should have made more of a record about police harassment of the attorney at a lineup or else should have testified about these events at the suppression hearing and at trial. As Justice Obus observed, however, in the absence of any showing that the police officers who allegedly shoved counsel were involved in the arrest or interrogation of petitioner, the entire episode was of no consequence either for petitioner's suppression hearing or for the trial.
We put to one side the question of whether petitioner sufficiently articulated to the state court the notion that his lawyer should have testified. Since the underlying claim is meritless, we need not decide whether Nuetzel has failed to exhaust this aspect of his claim. See 28 U.S.C. § 2254(b) (2).
Petitioner argues that his omnibus state-court motion named one police officer — which is true — but Nuetzel's attorney did not suggest that the officer in question (Officer McAteer) had done anything improper to him. (See Omnibus Motion — Blackstone Aff. at pp. 3-4).
As for petitioner's other attack on his attorney — concerning the handling of the murder counts — his arguments are, for reasons already noted, entirely groundless. To have argued for the felony-murder affirmative defense would have been an exercise in futility. Indeed, it would have been counterproductive, since it would have run counter to the principal defense strategy, which involved pressing the contention that Nuetzel had simply not been involved in the incident. As for the submission of both murder counts to the jury, again we note — as did Justice Obus — that the evidence was ample to justify giving both theories to the triers of fact.
Finally, even if we addressed the criticisms of counsel that Nuetzel articulated in his first section 440.10 motion but did not cite in his original habeas petition, the result would be the same. For reasons noted by Justice Obus, the attorney's decision not to make a point about the forensic tests on petitioner's pants and his agreement to allow petitioner to stand in front of the jury did not reflect professional incompetence and plainly did not adversely affect the outcome of the trial.
In sum, petitioner cannot show that his attorney performed in a manner that denied him professional representation. He also cannot show any prejudice from his attorney's performance.
CONCLUSION
For the reasons noted, we recommend that the writ be denied and the petition dismissed with prejudice.
Pursuant to Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court and served on all adversaries, with extra copies to be delivered to the chambers of the Honorable Richard J. Holwell, Room 1950, and to the chambers of the undersigned, Room 1670, 500 Pearl Street, New York, New York 10007. Failure to file timely objections may constitute a waiver of those objections both in the District Court and on later appeal to the United States Court of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989); 28 U.S.C. § 636(b) (1); Fed.R.Civ.P. 72, 6(a), 6(e).