Opinion
00-CV-3054 (JBW), 03-MISC-0066, Related to 97-CV-1852
October 24, 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. The file in this court is not complete, but the court has sufficient information to decide the case.
This petition was filed on May 26, 2000. Petitioner, sometimes referred to as defendant, claims:
Ground one: That the petitioner's statement was illegally admitted into evidence at trial.
Supporting Facts; That the petitioner's statement placed him at the scene of the crime flowed directly from petitioner's arrest, and it was also elicited from him after being restrained by the police. Petitioner was handcuffed during the ride to the precinct, kept in custody in a holding cell for at least 12 hours, threatened by police, sprayed with gas, coerced, and denied his request for counsel.
Ground two: An alleged excited utterance was erroneously admitted into evidence implicating petitioner in the shooting of deceased.
Supporting Facts; The court denied defense counsel from cross-examining a detective and an assistance district attorney, to whom the witness spoke regarding the so-called excited utterance as to whether the subsequent statements that he never implicated petitioner before, and that petitioner was not even at the scene of the crime.
Ground three: That the petitioner was denied his right to the effective assistance of counsel on appeal.
Supporting facts; The direct appeal herein was perfected by assigned counsel. Counsel did not discuss the specific issues that would be included in the brief, and petitioner did not have an opportunity to review the brief prior to its submission to the court. The brief, as submitted, did not present well-reasoned arguments, Counsel argued several issues in one, which resulted in a rambling and jumbled argument.
Ground four: That trial counsel's failure to request the court to provide an interpreter amounted to ineffective counsel.
Supporting facts: The court and counsel failed to apprise petitioner that if he did not fully understand the proceedings against him then, he was entitled to the assistance of an interpreter, and if petitioner believed that his testimony was being misunderstood, then counsel would request an interpreter and the court would provide one,
The evidence supports the folio wing statements: Shortly after midnight, on February 24, 1998, in the second-floor hallway of 330 Frost Street, in Brooklyn, defendant, acting with his brother and another man, shot Tony McKenzie six times, killing him. The brother and other man could not be apprehended.
Defendant was arrested several days later and subsequently was charged, by Kings County Indictment Number 2162/88, with one count of Murder in the Second Degree (N.Y. Penal Law § 125, 25[1]) and two counts of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 2( 55.03).
Defendant was found guilty of one count each of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree,
On June 20, 1989, defendant was sentenced to concurrent terms of imprisonment of twenty-five years to life on the murder count and five to fifteen years on the weapon possession count.
Defendant appealed from his judgment of conviction to the New York Supreme Court, Appellate Division, Second Department. In defendant's Appellate Division brief, dated June 7, 1991, defendant's appellate attorney raised, in effect, five claims: 1) that the police lacked probable cause to arrest defendant, and that defendant's statement to an assistant district attorney, Mark Irish, should therefore have been suppressed as the fruit of an illegal arrest; 2) that the trial court improperly admitted into evidence a hearsay statement, made by a man named Trueblood, which the people argued was an excited utterance; 3) that the court improperly precluded the defense from cross-examining A.D.A. Irish and a Detective DeRita about Trueblood's statements to them; 4) that the trial court improperly admitted into evidence that another person, identified as defendant's brother, threatened to kill McKenzie; and 5) that defendant's sentences were excessive. Defendant also submitted a pro se supplemental brief claiming that his videotaped statement was involuntarily made, that his guilt was not proven beyond a reasonable doubt, and that the trial court improperly admitted into evidence Trueblood's statement.
On June 15, 1992, the Appellate Division unanimously affirmed defendants judgment of conviction, holding that all of defendant's claims were without merit, People v. Reid, 184 A.D.2d 668, 584 N.Y.S.2d 873 (2d Dep't 1992).
Defendant applied for permission to appeal to the New York Court of Appeals, On August 14, 1992, defendant's application was denied. People v. Reid, 80 N.Y.2d 908, 588 N.Y.S.2d 834 (1992).
In papers dated September 20, 1992, defendant moved to reargue his appeal. On November 20, 1992, the Appellate Division denied defendant's motion to reargue.
In papers dated November 22, 1984, defendant moved to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440, 10. In those papers, defendant claimed in part that his defense counsel was ineffective for failing to request an interpreter to assist defendant when he testified at a pretrial hearing. On May 5, 1995, the Supreme Court, Kings County, denied defendant's motion. On August 23, 1995, defendant's motion for leave to appeal to the Appellate Division from the denial of his motion to vacate his judgment was denied.
Defendant submitted a petition, dated April 9, 1997, for a federal writ of habeas corpus. That petition was docketed under the name Reid v. Greiner under Docket Number 97-CV-1852 (SJ), Respondent moved to dismiss defendant's claims as barred by the one-year statute of limitations applied to federal habeas petitions. While this court initially granted respondent's motion to dismiss, it subsequently reinstated defendant's application. See Reid v. Greiner, order of Court of Appeals of Second Circuit, September 25, 1998, After respondent responded to the merits of the petition in papers dated November 17, 1993, defendant moved to withdraw the petition so he could exhaust claims. This court, in an order dated December 27, 1999, granted defendant's motion without prejudice.
In papers dated October 28, 1999, defendant moved in the Appellate Division for a writ of error coram nobis, on the ground that he received ineffective assistance of appellate counsel. In a decision and order, dated May 1, 2000, the Appellate Division denied defendant's motion . . . stating that defendant had failed to establish that he was denied the effective assistance of appellate counsel People v. Reid, 707 N.Y.S.2d 878 (2d Dep't 2000).
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 U.S. 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. Artus, 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, 19%, 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 F.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 "lime 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 does 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 se 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 the 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 tolling . . . 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. My 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.Warren 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 U.S. Dist. LEXIS 101, at *10 (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 ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 19%). 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, $10 (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 case, 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 (1984). 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 25, 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 be 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 "rcache[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." Purdy 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' prejudice prong. See Pavel v. Rollins, 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 Ezet 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 (2 d 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 iron frivolous argument that could be made, see Jones v. Barney, 463 U.S. 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 `mat 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 (2d Cir. 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 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, G3-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval 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-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at * 15-* 16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); COT v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 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.N.Y. 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-MISC-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 mere 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. 18 (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 cases 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 Cot to v. Herbert, No. 01-2694, 2003 US, App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of claims.
A.
Insofar as defendant is claiming that his statement was the fruit of an illegal arrest, defendant's claim is not reviewable in a habeas corpus proceeding. Insofar as defendant is claiming that his statement was involuntary, that claim is without merit. Insofar as defendant is claiming that his statement was taken in violation of his right to counsel, that claim is unexhausted but procedurally barred and without factual merit
"Under Stone v. Powell, 428 U.S. 465, 96 S. Cl. 3037, 49 L.Ed.2d 1067 (1976), federal habeas corpus relief is not available on the ground that evidence produced at trial was the result of an unconstitutional search and seizure, unless the state denied the prisoner an opportunity for full and fair litigation of the claim. " Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). The Second Circuit Court of Appeals has interpreted this principle to mean that a federal habeas court may review a state prisoner's Fourth amendment claim only if (1) the state has provided no corrective procedures to redress the alleged fourth amendment violation or (2) the state has provided a corrective mechanism, but the prisoner was precluded from using that mechanism "because of an unconscionable breakdown in the underlying process. " Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
New York State has created a corrective mechanism to redress Fourth Amendment violations. That mechanism is set forth in Article 710 of the New York Criminal Procedure Law. The Second Circuit has specifically approved of New York's procedure for litigating Fourth Amendment claims. See Capellan, 975 F.2d at 70 n.d; Michael v. Warden, Attica Correctional Facility, 707 F.2d 67, 69 (2d Cir. 1983).
Defendant was not precluded from using this mechanism by "an unconscionable breakdown in the underlying process," On the contrary, defendant took advantage of the procedures available to him, Defendant obtained a pretrial Dunaway/Huntley hearing in the Supreme Court, Kings County, on his motion to suppress evidence, At the hearing, on the issue of probable cause, the People presented the testimony of Police Officer Nieves (Nieves; H, 49-70), Defense counsel had the opportunity to question Officer Nieves extensively at the hearing (Nieves: H, 71-104, 116-26). At the conclusion of the hearing, the Supreme Court, Kings County, denied defendant's motion, finding that the police had acted lawfully (H. 210; Memorandum of Egitto, J., dated Aug. 29, 1989, ["Egitto Memorandum"] at 5 n. 4).
Following defendant's conviction, defendant appealed to the Appellate Division. Second Department. In his brief, defendant claimed that the hearing court erred when it concluded that the police had acted lawfully. The Appellate Division, in its decision, expressly rejected this claim on the merits, People v. Reid, 184 A.D.2d 668, 584 N.Y.S.2d 873 (2d Dep't 1992). Defendant's appellate counsel then sought permission to appeal to the New York Court of Appeals. See Respondent's Exhibit F. A judge of the Court of Appeals denied defendant permission to appeal. People v. Reid, 80 N.Y.2d 908, 588 N.Y.S.2d 834 (1992) Thus, defendant had a full and fair opportunity to litigate this claim in state court. "Even if [the state prisoner] were correct in his allegation that the Appellate Division erroneously decided this issue, a petitioner cannot gain federal review of a fourth amendment claim simply because the federal court may have reached a different result." Capellan, 975 F.2d at 71. This claim is not reviewable in this court. See Capellan, 975 F.2d at 69-72; Grey, 933 F.2d at 121.
The police had probable cause to arrest defendant. Even if there were no probable cause for defendant's arrest, defendant's videotaped statement would still have been admissible because, contrary to defendant's suggestion, the statement was an expression of his free will and was not tainted by the circumstances of the arrest. See Rawlings v. Kentucky, 448 U.S. 98, 106-07 (1980); Brown v. Illinois, 422 U.S. 590, 603-05 (1975),
Insofar as defendant is claiming that his statement was involuntary because he was "kept in custody in a holding cell for at least 12 hours, threatened by the police, sprayed with gas, coerced, and denied his request for counsel," that claim is also without merit. Defendant's assertions that he was threatened by the police, was sprayed with gas, and was coerced, and that his request for counsel was denied are based solely on his testimony at the pretrial hearing. The healing court found that all of defendant's testimony was "incredible" (Egitto Memorandum at 1 n. 1). That factual finding should be presumed to be correct. See 28 U.S.S. § 2254(e)(1); Marshall v. Lonberger, 459 U.S. 422 (1983),
Insofar as defendant is claiming that his statements were taken in violation of his right to trial counsel because his requests for counsel were denied, that claim is unexhausted but procedurally barred because that claim was not presented to any state court, and state procedural rules prevent him from raising that claim now, See league v. Lane, 489 U.S. 288, 297-99 (1989), Defendant may not now raise that claim in the Appellate Division because it has already taken the one direct appeal to which he was entitled. See generally People v. Manina 90 A.D.2d 777, 455 N.Y.S.2d 282 (2d Dep't 1982) (claims with respect to propriety of original convictions and sentences were not properly before appellate court on appeal from resentence); People v. Chirco 19 A.D.2d 729, 242 N.Y.S.2d 360 (2d Dep't 1963). Nor may defendant raise that claim in a motion to vacate the judgment of conviction pursuant to Criminal Procedure Law § 440.10, If defendant attempts to attach his judgment of conviction collaterally on that claim, the state court will be required to deny defendant's motion summarily, because the claim is reviewable from the record. See N.Y. Grim. Proc. Law § 440.10(2)(c),
In stating that it did not credit defendant's testimony, the hearing court implicitly rejected defendant's testimony that, before being questioned by A.D.A. Irish, defendant requested counsel. Such an implicit finding was supported by Detective DeRita's testimony that defendant did not request counsel (DeRita: H. 179). That factual finding should be presumed to be correct. See 28 U.S.C. § 2254(e)(1); Marshall v. Lonberger, 459 U.S. 422 (1983).
This series of claims have no merit.
B.
The trial court properly admitted as an excited utterance Trueblood's statement implicating defendant in the shooting of McKenzie. Because Trueblood's statement implicating defendant in the shooting of McKenzie-made immediately after that shooting and virtually while Trueblood was fleeing the scenes of the shooting-was an arguably excited utterance, the admission of that statement into evidence did not violate the Confrontation Clause, See White v. Illinois, 502 U.S. 346, 355-57 (1992) (Confrontation Clause does not bar admission into evidence of statement made in moment of excitement.
Insofar as defendant is claiming that the trial court improperly precluded his attorney from cross-examining prosecution witnesses about Trueblood's statements to them, that claim is without merit because testimony regarding those statements would have been hearsay that did not fall within any exception to the hearsay rule. They might have been deemed inconsistent statements available for impeachment, but the witness was fully cross-examined anyway.
Even if it were error for the trial court to admit Trueblood's statement or to preclude cross-examination about other statements of Trueblood, the error was harmless because those rulings did not have a "substantial and injurious effect or influence in determining the jury's verdict".
This claim has no merit.
C.
Counsel was effective at both the trial and appellate level. See the full brief of appellate defense counsel on the direct appeal to the Appellate Division, raising appropriate points well. Brief dated June 7, 1991 (36pp.)
D.
The claim that defendant was denied an appropriate interpreter has no basis in the record. See Defendant's motion dated November 22, 1994, seeking relief pursuant to section 440.10, See Transcript attached to that motion at pp. 172ff, showing petitioner spoke "Jamaican English."
E.
No other claim is more than frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealibility is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a certificate of appealibility from the Court of Appeals for the Second Circuit,
SO ORDERED.