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finding that habeas claim "based on such rank speculation" was "frivolous"
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02-CV-1522 (JBW), 03-MISC-0066
November 6, 2003
MEMORANDUM JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on March 19, 2002, Petitioner, sometimes referred to as defendant, claims:
Ground One: POINT I: Your Petitioner Has Always Maintained His Innocence: Actual Innocence.
Ground Two: POINT IT; The Identification Of Petitioner Should Have Been Suppressed.
Ground Three: POINT III: The Joint Trial of Three Co-Accused Was Unconstitutional.
Ground Four: POINT IV: Your Petitioner Was Unconstitutionally Prevented From Participating In Crucial Side-Bar Conferences With Prospective Jurors.
Ground Five: POINT V: The Prosecution Knowingly Withheld Exculpatory Evidence And Thus Assumed The Role And Powers Of Your Petitioner's Jurors (p. 14, herewith).
Ground Six: POINT VI: The County Court's Dental Of Defense's Application For Sanctions Against The Respondents For Brady Violations Was Clearly Erroneous Pursuant To Said Lower Court's Own Words And Reasoning, And On Law.
Ground Seven: POINT VII: Ineffective Assistance Of Counsel.
Ground Eight: Point VIII; There Is Not A Single Provision, Phrase, Or Word In The People's Constitution That Provides For The State's Negation Of An Individual's Rights Outside A Constitutional Amendment: Thus, The State's Self-Proclaimed Power To Create Procedural Bars, Forfeiture Laws, Etc., That So-Negate An Individual's Rights At Any Time Are Unconstitutional And Of No Legal Weight Herein.
Ground Nine: POINT IX; The Prosecution's Failure To Deny That It's Unconstitutional Laws Allowed The Judiciary And Executive Officials To Assume The Role and Powers Of your Petitioner's Jurors, And That It's Criminal Procedure Laws, § 440, Allow Prosecution Officials To Sit In Judgment Of Their Own Causes In Post-Conviction Proceedings Are The State's Admissions-By-Silence That Said Laws Are In Fact Unconstitutional — That The Same Laws Violate Both Our Juror's Rights To Be The Sole Judges Of the Facts Of the Case, And The Accused's Right to A Trial By Jury And Not A Trial By Officials Of The Prosecution.
The evidence supports the following statements:
On September 21, 1996, at about 7:30 p.m., the petitioner, Luis Panezo, and two accomplices, Vernal Aldegon and Victor Tunnon, robbed a bodega located at 319 Rogers Avenue in Brooklyn, During the course of that robbery, petitioner brandished a gun, announced a stick-up, and ordered the proprietor, his employees, and numerous customers to turn over their valuables, A short distance away, co-defendant Aldegon, armed with a knife, beat several of the people, threatened the victims, and took various items from them. Cash and merchandise including phone cards, cigarette lighters, and other items were taken from the store.
The police arrived before the robbers could escape.
Police officers Jason Harris and Nickolas Budlimic saw a man leaving the bodega as they arrived at the scene, and followed him until he entered a nearby building. The man, who was identified as petitioner by each officer, fired a shot at the officers as he entered an apartment house at 377 Montgomery Street. Another police officer, Sergeant Robert Turrito, saw a man leaving the bodega carrying a Heineken box, followed him and saw him fire at the officers as they pursued him from the robbery scene. He later identified that man at a showup, as one of the co-defendants, Tunnon, Petitioner, along with Tunnon, forced his way into an apartment inside that residential building, and was apprehended in that apartment after the police had cordoned off the building. They then proceeded to conduct a search of the building, knocking at the door of each apartment until the occupants of one told them that the petitioner and his accomplice did not belong there. Inside that apartment, the officers recovered two loaded guns, one of which bore co-defendant Tunnon's fingerprint, and many of the items taken in the robbery and later identified by the store's owner. Some of the clothing worn and described by witnesses in the robbery was discarded there.
The third co-defendant. Vernal Aldegon, was arrested several days later and was subsequently identified at a lineup as the knife-wielding robber by four of the victims of the bodega robbery.
Petitioner was indicted with his two co-defendants under Kings County Indictment Number 12374/96 for numerous counts of robbery in the first degree, assault in the second degree, attempted robbery in the second degree and criminal possession of a weapon in the second degree and related counts for the bodega robbery. In addition, petitioner, who, along with Tunnon, was captured in the nearby apartment, was charged with attempted murder in the first degree (New York Penal Law §§ 110/125, 27 [1][a][i] [police officer]), attempted aggravated assault in the first degree, burglary in the first degree, criminal possession of a weapon in the second degree, and criminal possession of stolen property in the fifth degree.
Following a jury trial, petitioner, along with his two accomplices, was convicted of two counts of first-degree robbery, attempted robbery in the second degree, assault in the second degree, and two counts of criminal possession of a weapon in the second degree. Petitioner was also convicted of unlawful imprisonment in the first degree, criminal trespass in the first degree, and criminal possession of stolen property in the fifth degree, for breaking into the apartment in the attempt to escape.
On January 6, 1998, petitioner was sentenced as second violent offender (New York Penal Law § 70.04) to concurrent determinate terms of imprisonment of twenty-five years for the first-degree robbery count, fifteen years for attempted robbery in the second degree, ten years for criminal possession of a weapon in the second degree and numerous lesser-concurrent sentences.
Petitioner appealed his conviction, raising two issues in his brief:
(a) the admission of petitioner's identification at a showup by a civilian was improper and prejudicial to him; and
(b) The defendant's joint trial with his two co-defendants was improper and in violation of New York Criminal Procedure Law § 200.40(1),
In addition, petitioner filed a pro se Supplemental Brief, alleging that he was improperly excluded from several bench conferences, which implicated his right to be present at trial.
On January 8, 2002, the Appellate Division, Second Department, unanimously affirmed petitioner's judgment of conviction. The court found that the identification evidence, based on the prompt near-the-scenc showup, was properly admitted at his trial. As to his two remaining claims, the court found they were each unpreserved for review, and declined to address the merits. People v. Panezo, 279 A.D.2d 482, 719 N.Y.S.2d 580 (2d Dep't 2001).
On April 16, 2001, petitioner's application for leave to appeal was denied. People v. Pattern, 96 N.Y.2d 804, 726 N.Y.S.2d 382.
On or about July 20, 2001, petitioner moved to vacate his judgment pursuant to C.P.L § 440.10. In his application, he claimed that the prosecutor withheld exculpatory evidence, and that his trial counsel had been ineffective in representing him at trial.
On October 30, 2001, the trial court denied petitioner's motion. The court expressly found that the petitioner had been provided with discovery, including the witness' statements, that petitioner failed to identify any item which he claimed had been withheld from him, and that, as a result, his claim was "not supported by sworn allegations of fact and fails to state a basis for legal relief" ( see, e.g., N.Y.C.P.L. § 440.30(4)(a) and (b)). As to his claim of ineffective assistance of counsel at trial, the court rejected the claim on the merits. See Memorandum Opinion dated October 30, 2001.
On January 8, 2002, the Appellate Division, Second Department, denied petitioner's application for leave to appeal the denial of relief.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v, Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part), Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court 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." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence," Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context," Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 US, App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No, 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No, 01-2739, 2003 U.S. App, LEXIS 6745, at *22 (2d Cir. 2003); see also Sup, Ct, R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 E.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground," Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted, . . ." 28 U.S.C. § 2244(d)(2), The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations, Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings, These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000), "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures," Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal docs not toll AEDPA's limitations period unless an extension is actually granted, See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro sc litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y, 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within die meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001), Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000), Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable lolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time," Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical, A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations,Wart-en v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV, 1604, 2000 US, Dist. LEXIS 101, at (S.D.N.Y, 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and., therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No, 02-2683, 2003 U.S. App, LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary ease, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence, Id. at 321, "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S, Const, amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n, 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1084), In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694, See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op, at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability," is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may he addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v, Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purely v, Zeldes, No, 02-7468, 2003 U.S. App, LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)), Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required, Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No, 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 ILS. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel 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), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law, Estelle v. McGuire 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict,'" Brecht v, Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v, Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982), This test applies post-AEDPA, See Wade v, Mantello, No. 02-2359, slip op, at 13 (2dCir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner" claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y, June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JEW), 2003 US. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-OS60, 03-MISC-0066 (JEW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sadoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) (Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y, June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-09S5, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 1(5, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JEW), 2003 U.S. Dist. LEXIS 9886, at *12-* 14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.KY. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MTSC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y, June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v, California, 386 U.S. IS (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for eases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No, 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
While some of petitioner's claims have not been exhausted, they are so lacking in substance that there is no reason to delay the proceeding permit a return to state court.
A.
Petitioner contends that the showup identification by robbery victim Barry Jones was improper and unduly suggestive. The showup was conducted near the scene of the crime, the bodega robbery, and was originally justified by the necessity to ascertain if petitioner was one of the robbers, or whether the search of the building and the surrounding area would continue for the escaped robbers, who were believed to be armed and violent. Such a prompt procedure was reasonably conducive to reliable identification.
The hearing court found that this showup was prompt and necessary and the Appellate Division Second Department, expressly rejected petitioner's claim, finding the "showup identification made of [petitioner was] near the crime scene." People v. Panezo, 279 A.D.2d 482, 719 N.Y.S.2d 580, 581 (2nd Dep't 2001) (citing to several state Court of Appeals rulings upholding the propriety of prompt re vie wings made at or near the crime scene).
That decision is in accord with the law as enunciated by the United States Supreme Court, It could not be held to be an unreasonable interpretation of federal law, as interpreted by the United States Supreme Court. 2S U.S.C. § 2254(d)(1).
Courts have held that relatively prompt identifications at or near the scene of a crime may be required to determine if the right person has been arrested or if the police should continue their search for the criminal. United States v. Bautista, 23 F.3d 726, 730 (2nd Cir. 1994), Identifications occurring promptly afer the crime at a time when memory and perception may be greatest, help assure the reliability of the selection. United States v. Bautista, 23 F.3d at 730.
A full hearing on the issue in the state court requires deference to the New York decisions.
This claim lacks merit.
B.
The record demonstrates that the petitioner failed to bring the severance issue to the trial court's attention so as to permit the court to address it. He made no motion to sever prior to the joint trial, thus waiving any claim he might have had to a separate trial from his co-defendants.
He failed to assert any right to participate in the several side-bar discussions to which he now cites, nor did he suggest that he had any need to personally participate, As a result, there is no record of what these discussions concerned.
The Appellate Division, Second Department declined to adjudicate either of these claims on the merits. People v. Panezo, 279 A.D.2d at 482, 719 N.Y.S.2d at 581. In support of that holding, the court cited to the State Criminal Procedure Law § 470.05(2) (requiring a party asserting error to alert the trial court to such claim at an appropriate time), and to several cases dealing with findings of unpreserved claims.
Because the state court found that defendant failed to preserve the two claims that he raised on direct appeal, each of these claims is procedurally barred from review here. Epps v. Commissioner, 13 F.3d 615 (2d Cir.), cert. denied, 114 S-Ct. 1409 (1994).
The trial and hearings were not fundamentally unfair. There can be no claim of innocence. The decisions of the trial court on joint trials and in conducting arguments without the presence of defendant at the sidebar were sensible and provided no basis for a claim of prejudice. See United States v. Gagan, 470 U.S. 522 (1985) (right to be present at in camera interview). The evidence was overwhelming.
These claims lack merit.
C.
Petitioner claims that the prosecutor failed to disclose to him allegedly exculpatory evidence, and that the court failed to impose sanctions under Brady for this failure to disclose, Petitioner presents these as two separate grounds in his petitioner, Grounds 5 and 6, Because the state court expressly rejected this claim based on petitioner's failure to comply with the New York Criminal Procedure Law governing the raising of claims in a motion to vacate judgment pursuant to N.Y.C.P.L. § 440.10 and 440.30, the procedural vehicle by which petitioner was required to raise this matter, these claims are foreclosed from review in this habeas corpus application.
In his direct appeal, petitioner did not raise any claim invoking the duty to disclose under Brady v. Maryland, 373 U.S. S3 (1963), and related cases, In his motion to vacate judgment, filed in July of 2001, petitioner first raised such a claim, See Exhibit D-l. Petitioner did not allege what items were not furnished to him, nor did he provide any affidavit of his trial counsel asserting that such items were not provided to him.
The trial court denied the motion. In regard to the Brady claim, it noted that the record showed that the defendant's attorney had been provided with appropriate discovery material prior to trial. It then disposed summarily of petitioner's motion, holding,
[Petitioner] does not identify a single item to which [he] was entitled that was not provided to him. Therefore, because [petitioner's] claim is not supported by sworn allegations of fact and fails to state a basis for legal relief, it must be denied.
Memorandum dated October 30, 2001, at 3 (Exhibit D-3), The Appellate Division, Second Department! subsequently denied petitioner's request for leave for further review, C.P.L. § 450.15(1). The trial court's summary denial of petitioner's conclusory and unsubstantiated Brady claim bars this Court from considering the claim.
In addition, petitioner raises an additional claim in relation to this Brady issue, that the trial court failed to impose "sanctions" on the prosecutor for the failure to disclose certain materials (Ground 6, petition). This claim does not appear to have been raised by petitioner at all in the state court, either on the direct appeal (including his prose Supplemental Brief) or in his Motion to Vacate Judgment in 2001, As a result, this claim is unexhausted, having never been raised at the state court level, and would require dismissal of the petition. Rose v. Lundy, 455 U.S. 509, 522, 102 S.Ct. 1198 (1982); Daye v. Attorney General, 696 F.2d 186, 190-91 (2nd Cir. 1982).
It is not appropriate to dismiss this petition to permit the petitioner to return to state court to litigate this frivolous claim.
Nothing in the record establishes the existence of any wrongdoing or even what statements were withheld that would have helped petitioner's case. In addition, petitioner claims here that the trial court's failure to impose "sanctions" on the prosecutor for the delayed disclosure of the statements in question, was in error and merits relief. However, the record clearly shows mat the only sanction requested was the complete preclusion of all of these witnesses, who were the police officers and the only witnesses testifying about the chase and the firing of shots (596 [transcript]). That request was made solely by counsel for Mr. Tunnon (Mr. Zuss), and not by Mr. Friedman, trial counsel for petitioner. Under New York law, the objection or request of a co-defendant's counsel does not generally apply to another defendant at the trial, See People v. Buckley, 75 N.Y.2d 843, 846 (1990); People v. Teeter, 47 N.Y.2d 1002, 1003 (1979); People v. Buster, 245 A.D.2d 460 (2nd Dep't 1997), Even assuming that counsel for petitioner is deemed to have made this argument, it is not conceivable that the court would have precluded the testimony in question.
The incident upon which petitioner relies, concerning the prior accounts of Officers Budlimic and Harris and Sergeant Turrito, about the pursuit of petitioner and co-defendant Tunnon, both of whom were apprehended in the apartment down the street from the bodega, which shooting had nothing to do with the petitioner's conviction for the robbery of the bodega, the principal crime for which petitioner has been convicted, or even the forcible entry into the apartment of Mr. And Mrs. Brito at 377 Montgomery Street. Although the testimony in question bore quite directly on the charge of attempted murder of the police officers, petitioner was acquitted of that charge and convicted solely of first-degree reckless endangerment (N.Y.P.L. § 120.25) in regard to that portion of the changes.
Petitioner's convictions were not dependent in any significant way on the officers' testimony. He cannot establish any basis for relief in regard to these materials.
This claim has no merit.
D.
Petitioner claims that he was deprived of the effective assistance of counsel by reason of a number of claimed failures of his trial counsel, including the failure of counsel to consult with him prior to the trial. Petitioner raised this claim in his post-trial motion to vacate judgment in 2001, The trial court denied it on the merits in its Memorandum Opinion, dated October 30, 2001. Because this ruling by the trial court was based on its first-hand viewing of a trial vigorously contested by an experienced attorney (and two other experienced and active attorneys for the two co-defendants) as well as the very conclusory and unsubstantiated nature of the attacks of defendant, the court's decision was supported by the record and was correct. Under any objective standard, counsel's representation of petitioner was meaningful and adequate.
Petitioner's attack on his trial counsel centers on his claim that counsel did not consult with him prior to trial and that trial counsel should have allowed other lines of defense, such as calling expert witnesses to dispute the testimony of the police officers, two of whom claimed he fired at them as they followed him after the robbery, or by calling civilian witnesses who might have given testimony contradicting these police witnesses. See Petitioner's Motion to Vacate Judgment, pp. 23-24, 27-31 and 33, Exhibit D-l. Petitioner presents a host of speculations based solely on his apparent idealization of what such witnesses might have said. No such witnesses have ever come forward, and their existence virtually presupposes that they could have provided some exculpatory testimony. This, in turn, is based on petitioner's claimed innocence, which is refuted by all the evidence adduced at the trial, What is clear beyond any question is that the value of these imagined witnesses is hardly what petitioner hypothesizes. As a result, his claims arc no more than a wish list of evidence that might have exonerated an innocent man. The fact is no such witnesses have been shown to exist and the instant claim based on such rank speculation is frivolous.
This claim has no merit.
E.
Petitioner raises three claims as grounds for relief in his petition, which he designates as Point I, VIII and IX, None of these matters has been raised as a ground for relief either on his direct appeal or in his motion to vacate judgment, To the extent that such a claim would furnish grounds for relief from his judgment of conviction in the state court it has never been presented to the state court. As a result these claims may not be grounds for granting relief. E.g., Rose v. Lundy, 455 U.S. at 522, Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Grey v. Hoke, 933 F.2d 117, 120 (2nd Cir. 1991); 28 U.S.C. § 2254(b). Moreover, none of these claims is even cognizable in habeas review.Petitioner includes as his first ground his claim of actual innocence. This is based, he asserts, on his seeking a jury trial. Although the presumption of innocence is a component of the due process of law guaranteed a criminal accused ( Kentucky v. Whorton, 441 U.S. 786, 99 S.Ct. 2088 (1979)), petitioner's conviction of serious crimes after a lengthy and fair trial, negates any reliance on a pro forma decision to go to trial as furnishing any factual basis for his assertion of innocence here. In support of his claim, he simply revisits the numerous issues that he has raised in the remainder of his petition as responsible for his conviction.
This contention has no merit.
F.
Petitioner's remaining two claims, posed in Points VII and IX of his petition, are difficult to understand.
Turning to what must be assumed are the basis for petitioner's attack on the state's procedural rules for adjudicating substantive claims, it appears that of the five separate claims upon which he relies here, three were denied on what may be deemed procedural grounds. First, on his direct appeal, the Appellate Division, Second Department, declined to reach the merits on two of his three claims. People v. Panezo, 279 A.D.2d at 482, 719 N.Y.S.2d at 581, Petitioner raised two claims in addition to the identification claim, which the court expressly adjudicated against him, a severance claim and a claim that the court violated his right to be present during bench conferences with certain jurors (raised in his pro se Supplemental Brief). The Appellate Division rejected petitioner's severance claim, citing to C.P.L § 470.05(2), in its disposition of the two remaining but unnamed matters. See Id. New York Criminal Procedure Law § 470.05(2) states in substance that no issue of law is presented unless the party claiming error protested a ruling or brought the point to the court's attention. See e.g., People v. Gray, 86 N.Y.2d 10, 19, 629 N.Y.S.2d 173, 175 (1995); People v. Robinson, 36 N.Y.2d 224, 228, 367 N.Y.S.2d 208, 211 (1975). In this case, petitioner did not move for a severance ( see C.P.L, § 200.20(3)). As a result of this failure to so move, his severance claim was not preserved. One of his co-defendants, Aldegon, moved twice for severance, albeit unsuccessfully, but petitioner never did so.
The other issue which the Second Department declined to review was petitioner's right to be present, which the court noted was also unpreserved. The Second Department cited to both New York Court of Appeals cases and its own rulings, in which the courts found that the appellant had failed to complain in any way or to make an adequate record upon which to adjudicate such a claim, People v. Panezo, Id. That decision is in accord with prior cases in the area in the New York courts. See People v. Maher, N.Y.2d 318, 325, 653 N.Y.S.2d 79, 82 (1996); People v. Vanegas, 237 A.D.2d 469, 470, 655 N.Y.S.2d 965, 966 (2nd Dep't 1997) (declining to review defendant's presence claim due to inadequacy of the record to determine whether any right was implicated); People v. McCargo, 219 A.D.2d 683, 684, 631 N.Y.S.2d 407 (2nd Dep't 1995) (same). See generally. People v. Kinchen, 60 N.Y.2d 772, 774, 457 N.Y.S.2d 680, 681 (1983) (insufficient record to determine claim of right to counsel violation, although such claim need not be preserved for review in New York).
The New York Courts acted in accord with prior precedent, declining to consider two issues that were never brought to the lower court's attention and thus were never considered by the trial court. Such rulings are wholly consistent with both habeas principles and Federal Appellate Procedure. E.g., Harris v. Reed, 489 US. at 263 n.; Grey v. Hoke, 933 F.2d at 120 (federal habeas review precluded for claim that is barred under state procedural law).
The other claim that was denied primarily on procedural grounds was petitioner's Brady claim, which the trial court refused to adjudicate on the inadequacy of the allegations of petitioner's motion to vacate judgment. See Memorandum of October 30, 2001, at 2; N.Y.C.P.L. § 440.30(1) and (4)(b). The court identified the failure of petitioner to identify any item that was not disclosed to him. Id. Any suggestion that such application of a procedural bar to matters that are not even identified to the court as the subject of the claim, is frivolous. Petitioner's claim that his rights have somehow been violated in regard to undocumented issues is without support.
This series of claims has no merit.
G.
No other possible claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted, petitioner having made no substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.