Opinion
No. 01-CV-920 (NG)
July 18, 2002
ORDER
Pro se petitioner was convicted on May 30, 1997, after a jury trial in New York Supreme Court, Queens County (McGann, J.) of one count of Murder in the Second Degree in violation of N.Y. Penal Law § 125.25(2) (depraved indifference murder), and one count of Criminal Possession of a Weapon in the Second Degree in violation of N.Y. Penal Law § 265.03. Petitioner, through new counsel, appealed the judgment of conviction to the Supreme Court, Appellate Division, Second Department, arguing that the evidence was legally insufficient to support petitioner's conviction, that the court's ruling pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), constituted reversible error, that the jury's verdict was repugnant, and that petitioner's absence during part of the Sandoval hearing and jury selection constituted reversible error. On June 14, 1999, the Appellate Division affirmed the conviction. People v. Peterson, 262 A.D.2d 505 (2d Dept. 1999). In June 1999, petitioner, through counsel, sought permission to appeal to the New York Court of Appeals. On October 14, 1999, petitioner filed a pro se supplement to counsel's leave application. On November 15, 1999, petitioner's application for leave to appeal was denied. People v. Peterson, 94 N.Y.2d 828 (1999).
Petitioner moved for a writ of error coram nobis on March 14, 2000, alleging that appellate counsel was ineffective because he failed to raise the additional claims that he was denied the right to represent himself, to trial counsel of his choice, and to effective assistance of trial counsel, and that his sentence was excessive. He also argued that appellate counsel was not sufficiently zealous; his brief did not follow the guidelines set forth in Brief Writing and Oral Arguments and he had waived oral argument; and he jeopardized petitioner's chance of gaining federal habeas relief by failing to couch his claims in federal terms and failing to raise all the claims in his letter seeking leave to appeal to the Court of Appeals. On June 19, 2000, the Appellate Division, Second Department unanimously denied the coram nobis petition. People v. Peterson, 273 A.D.2d 414 (2d Dept. 2000).
By petition dated January 26, 2001, petitioner seeks a writ of habeas corpus from this court. He alleges that the evidence is insufficient to support his conviction; that he was denied the right to represent himself, to counsel of his choice, and to effective assistance of trial counsel; that he was denied the right to effective assistance of appellate counsel; and that he was denied due process by not being present at portions of his trial and by the trial court's erroneous Sandoval ruling. For the following reasons, the petition is denied.
1. Sufficiency of the Evidence:
Both of petitioner's sufficiency of the evidence claims are procedurally barred. Petitioner failed to present his sufficiency claim as to his Criminal Possession of a Weapon in the Second Degree conviction in state court, and he no longer has remedies available in state court. He cannot seek leave to appeal this claim to the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991). Further, he cannot obtain collateral review because this claim could have been raised on direct appeal. See id. Since petitioner has not established cause to excuse his default and prejudice, or actual innocence, this claim is procedurally barred. Aparicio v. Artuz, 269 F.3d 78, 90-93 (2d Cir. 2001); Jones v. Stinson, 229 F.3d 112, 118-19 (2d Cir. 2000).
Petitioner's sufficiency of the evidence claim as to his Murder in the Second Degree conviction is procedurally barred because his trial counsel failed to preserve the claim by sufficiently making his position regarding the claim known to the trial court. See N.Y.C.P.L. § 470.05(2). Federal habeas corpus review of a state conviction is prohibited if a state court judgment is based on an "adequate and independent state ground," Harris v. Reed, 489 U.S. 255 (1989), such as a state procedural bar rule. In this case, the state court clearly and expressly stated that it was relying on a state procedural bar rule, holding that "[t]he defendant's contention that the evidence was legally insufficient is unpreserved for appellate review." Jones, 229 F.3d at 118-19; Peterson, 262 A.d.2d at 503.
That the state court went on to address the merits of petitioner's claims in an alternative holding does not change the results because "a state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law." Harris, 489 U.S. at 264 n. 10 (emphasis in original). Since petitioner has not made a showing of cause to excuse his default and prejudice, or actual innocence, the claim is procedurally barred. Aparicio, 269 F.3d at 90-93; Jones, 229 F.3d at 118-19.
In any event, the claim lacks merit. After viewing the evidence in the light most favorable to the prosecution and crediting every inference that the jury might have drawn in favor of the prosecution, a rational trier of fact could have found the essential elements of depraved indifference murder and Criminal Possession of a Weapon in the Second Degree beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Hernandez, 85 F.3d 1023, 1030 (2d Cir. 1996). Under New York law, a person is guilty of depraved indifference murder when "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes the death of another person." N.Y. Penal Law § 125.25(2). A person "is guilty of criminal possession of a weapon in the second degree when, with intent to use the same unlawfully against another. . . he possesses a loaded firearm. N.Y. Penal Law § 265.03.
In this case, Larry James, petitioner's son, testified that he and petitioner, who had no job at the time, lived with his seventy-eight year old grandmother Nina Peterson in East Elmhurst, Queens. On the morning of January 29, 1996, Larry testified that he was making breakfast in the kitchen with his three year old brother Lamar James, who was visiting at the time. Lamar continually bothered Nina by turning off the television, and she scolded Lamar several times. Eventually, petitioner got in an argument with his mother over the scoldings. Larry testified that petitioner and Nina often got into arguments. Nina threatened that she was "going to get [petitioner] out of my house." Larry testified that the argument got more heated, and petitioner grabbed his mother by the collar with both hands and began to choke her. As Nina struggled to escape, she fell backward onto a table, in the living room, with petitioner on top of her. Larry, who was about twenty years old at the time, testified that he was only a few feet away from his father and grandmother at the time, and he tried to get his father off his grandmother. Larry eventually pulled petitioner off of his grandmother, but petitioner struggled to get back to her. Larry eventually pushed petitioner into the bedroom and onto the bed. He told petitioner to calm down and leave Nina alone.
Larry testified that he went back to the kitchen. From there, he saw petitioner return to the living room, where his grandmother still was sitting a few minutes later. A few seconds later, he heard his grandmother call his name. When Larry went back into the living room, he saw Nina laying prostrate on the floor, with petitioner kneeling on her chest. Petitioner was pointing a chrome barrel gun against her face and screaming at Nina as she laid motionless with her hands up by her neck saying "okay, okay." Larry then testified that petitioner shot his mother one time in the face.
Police Officer Salvador Carbo, the first officer on the scene, testified that, when he arrived, petitioner was yelling and waving his arms, and grabbed the officer and pulled him towards Nina's corpse. Petitioner had blood on his shirt, and Detective Peter Boylan testified there was an operational .38 caliber Smith and Wesson gun on the floor by the body, with five of six chambers loaded. Detective Eileen Barrett testified that the only fingerprints found on the gun matched petitioner's fingerprints. Detective Anthony Johnson testified that, when the police took petitioner out to an ambulance, he was yelling "I don't believe I did that. I can't believe I shot my moms." At the police station, after being read his Miranda rights and signing a waiver, petitioner made a written and videotaped statement that he had taken a gun from his bedroom, cocked it, and shot his mother, but he claimed that the gun discharged accidentally.
Contrary to petitioner's claim, a reasonable jury could conclude, based on this evidence, that petitioner possessed a loaded firearm with the intent to use it unlawfully against his mother and that he killed his mother under circumstances evincing a depraved indifference to human life. A reasonable jury could conclude that, by pointing a loaded gun at his mother's head at point blank range while he was holding her down in a prostrate position with her hands behind her back, and cocking the gun, that he possessed a loaded firearm with the intent to use it unlawfully against another, and that he recklessly engaged in conduct which created a grave risk of death to another person.
2. Trial Counsel Claims:
Petitioner's claims that he was denied the right to represent himself, to counsel of his choice, and to effective assistance of trial counsel are unexhausted and now procedurally barred. A petition for a federal writ of habeas corpus must exhaust the remedies available in state court, unless there is an absence of available state corrective process or circumstances exist that render the process ineffective. 28 U.S.C. § 2254(b)(1). In this case, petitioner did not raise these claims before the Appellate Division. While petitioner raised the claims in his pro se supplemental application for leave to appeal to the Court of Appeals, the exhaustion requirement is not satisfied where a petitioner presents claims to the state court for the first time in an application for discretionary review that is rejected. See Castille v. People, 489 U.S. 346, 351 (1988); Ellman v. Davis, 42 F.3d 144, 148 (2d Cir. 1994), cert. denied, 515 U.S. 1118 (1995).
These unexhausted claims are now procedurally barred. Petitioner cannot seek leave to appeal these claims to the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See Grey, 933 F.2d at 120. Further, he cannot obtain collateral review because these claims could have been raised on direct appeal. See id. Therefore, the claims are procedurally barred, unless petitioner can establish cause to excuse his default and prejudice, or actual innocence. Aparicio, 269 F.3d at 90-93; Jones, 229 F.3d at 118-19.
Petitioner claims that the ineffectiveness of his appellate counsel in neglecting to include claims that petitioner was denied the right to represent himself, to counsel of his choice, and to effective assistance of trial counsel among the grounds raised on direct appeal constitutes cause and prejudice. The claim of ineffective assistance of appellate counsel is preserved, since it was raised in petitioner's coram nobis application and rejected by the Appellate Division. Ineffective assistance of appellate counsel, if established, can constitute "cause" excusing the procedural default, see Edwards v. Carpenter, 529 U.S. 446, 451 (2000), but "[a]ttorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial." Murray v. Carrier, 477 U.S. 478 (1986). As discussed below, appellate counsel was not ineffective for failing to raise these claims. Therefore, the claims of denial of the right to self-representation, to counsel of his choice, and to effective assistance of trial counsel are procedurally barred.
3. Effective Assistance of Appellate Counsel:
In order to prevail on an ineffective assistance of counsel claim, a petitioner must show both that counsel's performance fell below the objective standards of reasonableness dictated by prevailing professional norms and that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Under the first prong, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689. To establish the second, "prejudice" prong, a petitioner must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" in this context is one that undermines confidence in the outcome of the proceeding. Id. at 694.
The Strickland standard applies to appellate as well as to trial counsel. Mayo v. Henderson, 13 F.3d 528 (2d Cir.), cert. denied, 513 U.S. 820 (1994). On appeal, counsel is not required to argue every non-frivolous issue; rather, the better strategy may be to focus on a few more promising issues so as not to dilute the stronger arguments with a multitude of claims. Jones v. Barnes, 463 U.S. 745, 751-53 (1983). Reviewing courts should not second-guess the reasonable decisions of appellate counsel to press certain issues instead of others; inadequate performance is established only if counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker. Id. at 754; Mayo, 13 F.3d 533. In the appellate context, the prejudice prong of Strickland requires a showing of a reasonable probability that the unraised claim would have been successful before the state's highest court. Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912 (1993). In addition, since this petition was filed after the effective date of the Antiterrorism and Effective Death penalty Act of 1996 ("AEDPA"), which mandates deference to state court decisions, petitioner must show that the state court decision denying relief was contrary to, or involved an objectively unreasonable application of, clearly established federal law, as determined by the Supreme Court in order to prevail on either of his ineffective assistance of counsel claims. Sellan v. Kuhlman, 261 F.3d 303, 308-14 (2d Cir. 2001); 28 U.S.C. § 2254(d)(1).
The Appellate Division's determination that appellate counsel was not ineffective for failing to raise claims that petitioner was denied the right to represent himself, to counsel of his choice, and to effective assistance of trial counsel is not contrary to, and does not involve an unreasonable application of, clearly established federal law. These claims clearly lack merit, so there is no reasonable probability that the outcome would have been different had appellate counsel raised the claims.
Petitioner's claim that he was denied his right to represent himself lacks merit because petitioner never requested that he be permitted to represent himself, including in his motion for substitution of counsel. On the contrary, the trial judge asked petitioner whether he wished to represent himself on two occasions. One time, petitioner did not respond to the court. The other time, the following exchange took place:
THE COURT: . . . . Do you want to represent yourself?
THE DEFENDANT: Is that a decision I have to make right now?
THE COURT: This trial has started. This trial has started with the selection of a jury. It's going forward tomorrow. You're going to be produced tomorrow. If you want to represent yourself, I'll have [defense counsel] sitting here available to you if you have any legal questions. I'm not going to — if you want to represent yourself, I'll have to consider that, but it's going forward tomorrow. Not the next day. Not the next day. We already have a jury panel in the room. Do you understand me?
THE DEFENDANT: Yes.
When petitioner appeared before the judge again, two days later, he did not request that he be permitted to represent himself.
Nor does petitioner's claim that he was denied his Sixth Amendment right to counsel by the trial court's denial of his last minute request for substitution of counsel have merit. A criminal defendant has a right under the Sixth Amendment to have counsel appointed at every critical stage of a criminal proceeding, Gideon v. Wainwright, 372 U.S. 335 (1963), but "[b]ecause the right to counsel of one's choice is not absolute, a trial court may require a defendant to proceed to trial with counsel not of defendant's choosing; although it may not compel defendant to proceed with incompetent counsel." United States v. Schmidt, 105 F.3d 82, 89 (2d Cir. 1997). To warrant substitution of counsel where, as here, the application is made shortly before the commencement of trial, the defendant must show good cause, such as a conflict of interest, a complete breakdown of communications or an irreconcilable conflict. See id.; McKee v. Harris, 649 F.2d 927, 931 (2d Cir. 1981), cert. denied, 456 U.S. 917 (1982). In this case, while petitioner makes a conclusory allegation that his counsel had a conflict of interest, the only specific grounds he points to are that trial counsel had lost several other trials and that he had limited contact with petitioner. The trial court then held a hearing, see McKee, 649 F.2d at 933, at which he determined that defense counsel had performed "quality work" up to that point, and that substitution of counsel would cause undue delay. Petitioner has not shown that the trial judge abused his discretion in making this determination. Moreover, even if the decision not to substitute counsel was erroneous, the error was harmless because counsel's performance was not ineffective. See Stephens v. Costello, 55 F. Supp.2d 163, 172 (W.D.N.Y. 1999) (holding that any error in denying a defendant's last-minute motion to substitute counsel is harmless if the ruling did not result in ineffective assistance of counsel); Magee v. Romano, 799 F. Supp. 296, 301 (E.D.N.Y. 1992) (same).
Petitioner's trial counsel was effective. Petitioner argues that his trial counsel was ineffective for failing to raise a claim that the conviction of Criminal Possession of a Weapon in the Second Degree is a lesser included offense to Murder in the Second Degree and to pursue the affirmative defense of extreme emotional disturbance to the intentional murder charge, of which he was acquitted. However, Criminal Possession of a Weapon in the Second Degree is not a lesser included offense to Murder in the Second Degree because the two crimes do not even share a common element. See N.Y.C.P.L. § 1.20(37).
Nor was trial counsel ineffective for "ignoring" the affirmative defense of extreme emotional disturbance because the evidence at trial does not support such a defense. In order to prove extreme emotional disturbance, a defendant must show that he acted under the influence of an extreme emotional disturbance and that there was a reasonable explanation or excuse for that disturbance. See People v. Roche, 98 N.Y.2d 70 (2002). The first, subjective element requires a showing that defendant's conduct at the time of the incident was actually influenced by extreme emotional disturbance. See id. The second, objective, element, requires proof that defendant's emotional disturbance was supported by a reasonable explanation or excuse. See id. "A defendant cannot establish an extreme emotional disturbance defense without evidence that he or she suffered from a mental infirmity not rising to the level of insanity at the time of the homicide, typically manifested by a loss of self-control. And not all mental infirmities merit a manslaughter charged based on extreme emotional disturbance." Id.
In this case, there was no evidence produced at trial that supports the argument that, at the time of the incident, petitioner was actually suffering from extreme emotional disturbance or that this emotional disturbance was supported by a reasonable explanation or excuse. As discussed above, after getting into a minor argument with his mother, which eventually escalated, petitioner began to choke his mother. There was evidence that these arguments occurred on other occasions. Petitioner's son pulled petitioner off his mother, brought him to a separate room, and told petitioner to calm down. Petitioner retrieved a hand-gun, and a few minutes later, got on top of his mother, pointed the loaded gun at her head, and shot her. Further, there is no evidence that petitioner suffered from a mental infirmity. Therefore, since there was no basis for arguing that petitioner suffered from an extreme emotional disturbance, trial counsel was not ineffective for failing to raise this defense, and appellate counsel was not ineffective for failing to raise an ineffective assistance of trial counsel claim. To the extent petitioner is claiming that his trial counsel should have developed evidence to support an extreme emotional disturbance claim, he fails to identify any evidence his attorney could have presented in support of his claim, despite the fact that petitioner is well placed to know what evidence exists.
Petitioner next argues that his appellate counsel was ineffective because he was not sufficiently zealous. However, appellate counsel was zealous. He marshaled the facts and raised strong arguments on four claims. Further, beyond the conclusory statement that appellate counsel was not zealous, petitioner does not identify any specific improper conduct by appellate counsel. Therefore, he has failed to show that appellate counsel's performance was deficient, or that he was prejudiced by counsel's performance.
Petitioner's claim that appellate counsel was ineffective for failing to follow the guidelines set forth in Brief Writing and Oral Argument is also meritless because, since the Appellate Division addressed all claims raised by appellate counsel, any errors were harmless. Likewise, petitioner's claim that appellate counsel was ineffective for waiving oral argument and relying on his brief lacks merit because this was a reasonable strategic decision and petitioner has not shown how requesting oral argument would create a reasonable probability that the outcome would have been different.
Petitioner's next claim, that appellate counsel jeopardized petitioner's chances of gaining federal habeas review by not specifically couching each argument in federal terms and by not exhausting all his claims by presenting them in his application for leave to the Court of Appeals, lacks merit because, since petitioner suffered no prejudice from these actions, any error was harmless. Petitioner suffered no prejudice from appellate counsel's failure to specifically state that each claim was raised under the federal constitution because respondent did not, and could not, argue that petitioner had failed to alert the state courts to the federal nature of his claims, and this court has not declined to address the merits of any of petitioner's claims on this ground. Likewise, petitioner suffered no prejudice by appellate counsel's failure to include every issue in his letter seeking leave to appeal because petitioner exhausted all the claims raised before the Appellate Division by submitting a pro se supplement.
4. Presence at Trial and Sandoval Ruling:
Petitioner has not shown that the Appellate Division's holding that he "effectively waived his right to be present at material stages of his Sandoval hearing and trial by refusing to attend portions of the Sandoval hearing and jury selection despite the court's advice," Peterson, 262 A.D.2d at 503 (citations omitted), was contrary to, or involved an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1). While a defendant "has a right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings," including jury selection, see Tankleff v. Senkowski, 135 F.3d 235, 246 (2d Cir. 1998), this right maybe waived, so long as the waiver is knowing and voluntary. Polizzi v. United States, 926 F.2d 1311, 1319 (2d Cir. 1991).
In this case, since petitioner was dissatisfied with the trial court's denial of his motion to substitute counsel, petitioner refused to enter the courtroom the day jury selection was scheduled to begin. The trial judge adjourned the case until the following day, and engaged in an extensive conversation with petitioner about his right to be present and the importance of his participation in the case. The trial judge stated as follows:
THE COURT: [T]his case is going to go to trial. And what I want you to think about is, no way it can be better for you to be somewhere else and not knowing what's happening here. That just doesn't make sense. Once you preserve the objection to going forward with this lawyer, you've made that point. Why put yourself in a situation where you're not even going to know what's happening. That makes no sense to me. And you have an absolute right to be here. Because what I need you to know is this: The trial is going to take place tomorrow whether you're here or not. As long as I determine that you're deliberately not coming to court, and I'm going to have you brought here every day.
We're going to have a jury come in, and I'm going to tell them not to speculate, but they're going to see you're not here. There are going to be things said, as I have told you, that you don't know yet how helpful your knowledge could be, even if it's to somebody you don't agree with. You'll always have an opportunity to raise an issue with me. You can't do it if you don't know what it is that's happening for you to speak to. You're giving up all of those things by not being here when you still have your objection.
Now, will you — do you want to be present? That's your choice.
THE DEFENDANT: I cannot continue.
THE COURT: Sorry, sir?
THE DEFENDANT: I cannot continue to be a part of this
THE COURT: All right, the correction department is to produce the defendant here every day, by force and restraint if necessary. This trial will take place.
[DEFENSE COUNSEL]: To clarify, Judge, does that mean that he will be produced into the building?
THE COURT: In the building.
[DEFENSE COUNSEL]: But not to the courtroom?
THE COURT: No, every day. Every day I'll give you an opportunity to come in. If you're not, I'll deal with it. Then if I determine you've voluntarily stayed away, the trial will take place in your absence. Do you understand that, sir?
THE DEFENDANT: Yes
[DEFENSE COUNSEL]: In other words, they will bring you to the building, but from the pens to the courtroom, it will be your decision. The judge won't force you or ask you to come in like he did today to have this discussion, but he's having you brought to this building so that you can be communicated with to see if you have changed your mind and you want to come to the courtroom, into the courtroom. Do you understand it?
THE DEFENDANT: Hm-mm.
The following day, April 1, 1997, during the conclusion of the Sandoval hearing and the beginning of jury selection, petitioner refused to come into the courtroom. A court officer reported to the court that petitioner stated that "I already told my lawyer I'm not going to go," and he told the officer that he was not going to come into the courtroom. However, April 2, 1997, petitioner returned to the courtroom. Under these circumstances, petitioner waived his right to be present at the trial and, given the trial judge's extensive instructions on his right to be present and the importance of being present, this waiver was knowingly and voluntarily made.
Petitioner's Sandoval claim is not a ground for federal habeas corpus relief. Since petitioner did not testify, his claim of an improper in limine ruling permitting impeachment with a prior conviction does not present a question of constitutional magnitude because his failure to testify renders any harm flowing from the ruling totally speculative. Luce v. United States, 469 U.S. 38, 43 (1984); Carroll v. Hoke, 695 F. Supp. 1435, 1439-40 (E.D.N.Y. 1988), aff'd, 880 F.2d 1318 (2d Cir. 1989).
Conclusion
The petition for a writ of habeas corpus is denied.
As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.