Opinion
No. 05 Civ. 8440 (RJS)
01-29-2013
ERRY ROSAS, Petitioner, v. DALE ARTUS, Superintendent, Clinton Correctional Facility, Respondent.
Petitioner is appearing in this matter pro se. Respondent is represented by Justin Braun and Jillian Elizabeth Wieder, Office of the District Attorney, Bronx County, 198 E. 161st Street, Bronx, New York 10451.
MEMORANDUM AND ORDER :
Erry Rosas ("Petitioner") brings this petition for a writ of habeas corpus (the "Petition") pursuant to 28 U.S.C. § 2254, challenging his conviction in New York State Supreme Court, Bronx County, for rape in the first degree, for which he was sentenced to an indeterminate prison term of twelve-and-a-half to twenty-five years. For the reasons that follow, the Court denies the Petition.
I. BACKGROUND
A. Facts
On July 9, 1997, Petitioner was indicted on two counts of rape in the first degree and one count of endangering the welfare of a child in connection with the alleged rape of his biological daughter, then fourteen years old. Trial commenced on June 22, 1998 in Bronx County Supreme Court. At trial, Petitioner's daughter testified that Petitioner raped her on two occasions during the period from April 19 to May 31, 1997 in the Bronx apartment that she shared with her aunt, grandparents, and Petitioner. (First Trial Tr. 7-10, 14, 15-17.) The first incident allegedly occurred in the morning on a weekday. (Id. at 7.) The second allegedly occurred on a Saturday. (Id. at 15.) Prior to April 1997, Petitioner's daughter had lived with her mother in Chicago and, before that, with Petitioner in Brooklyn. (Id. at 5, 36.) At trial, Petitioner asserted that his daughter fabricated the charges against him because she was upset about his strict disciplinary rules as well as their recent argument. (See id. at 53-59.)
In ruling on the Petition, the Court also considers the memoranda of law submitted by the parties, as well as the affidavits, declarations, and exhibits attached thereto.
After deliberations, the jury found Petitioner not guilty on one count of rape in the first degree but could not reach a unanimous verdict on the second count. Re-trial on the second count commenced on April 12, 1999, and the jury convicted Petitioner of rape in the first degree. On October 8, 1999, Petitioner was sentenced to twelve-and-a-half to twenty-five years' imprisonment. After his conviction in the Bronx, Petitioner subsequently pleaded guilty to a separate indictment in Brooklyn, charging him with rape in the first degree stemming from the rape of his daughter in 1996. Petitioner is currently serving his sentence at the Otisville Correctional Facility in Otisville, New York.
The count of endangering the welfare of a child was not submitted to the jury.
On or about September 27, 2002, Petitioner, represented by counsel, directly appealed his conviction, arguing that: (1) he was denied the right to a fair trial because the indictment failed to allege a specific date on which the rape occurred; (2) the trial court erred in allowing the jury to hear evidence of uncharged crimes; (3) the trial court erred when it improperly admitted hearsay testimony; and (4) the sentencing court abused its discretion when it imposed the term of sentence. (Aff. of Justin J. Braun, dated Jan. 30, 2008, Doc. No. 24 ("Braun Aff."), Ex. 1 at 7-23.) In addition, on or about March 13, 2003, Petitioner filed a pro se supplemental brief, arguing, inter alia, that: (1) the trial court and trial counsel failed to ensure that the jury was impartial; (2) the trial court erred in allowing the jury to hear evidence of uncharged crimes; (3) the trial court violated Petitioner's Sixth Amendment right of confrontation; (4) the trial court erred in allowing the prosecution to refer to uncharged crimes in its closing argument; (5) the trial court erred by improperly admitting hearsay testimony; and (6) trial counsel was ineffective because he opened the door to evidence of uncharged crimes, violated Petitioner's right to testify, and failed to obtain, review, and use alleged Rosario material in Petitioner's defense. (Braun Aff. Ex. 2 at 3-28.) Petitioner also argued in his pro se supplemental brief that the "cumulative effect" of these errors deprived him of his right to a fair trial. (Id. at 24.)
"Rosario material" consists of prosecution witnesses' prior statements relating to the subject matter of those witnesses' testimony. People v. Rosario, 9 N.Y.2d 286, 289 (1961).
The Appellate Division denied Petitioner's direct appeal on June 10, 2003, addressing and rejecting the arguments he made in both of his briefs. See People v. Rosas, 759 N.Y.S.2d 866, 866-67 (App. Div. 2003), leave denied, 100 N.Y.2d 645 (2003). Specifically, the court found that Petitioner's right to be properly informed of the charges against him was not violated because the six-week period in the indictment was reasonable. Id. at 866. Furthermore, the court found that Petitioner did not preserve his "challenge to the uncharged crimes evidence" and that, even if the court were to review the claim, it would find that the uncharged crimes evidence "was admissible for the purpose of explaining and refuting matters raised on cross-examination." Id. The Court also found that Petitioner's claim of ineffective assistance of counsel - including Petitioner's allegation that counsel was ineffective in "opening the door" to prejudicial uncharged crimes - was not reviewable on direct appeal because it involved questions of strategy and matters outside the record; however, to the extent that the claim was based on the record, the court found that Petitioner received effective assistance of counsel. Id. (citing People v. Benevento, 91 N.Y.2d 708, 713-14 (1998)).
On May 7, 2004, Petitioner moved pro se to vacate his conviction pursuant to New York Criminal Procedure Law ("N.Y.C.P.L.") section 440.10, claiming ineffective assistance of counsel during and prior to trial, as well as the denial of his right to due process and a fair trial. (Braun Aff. Ex. 4.) Specifically, Petitioner argued that his trial counsel was ineffective because he failed to: (1) conduct a pre-trial investigation of existing medical evidence; (2) ensure that an empanelled juror could be fair and impartial; (3) advise Petitioner of his right to testify; and (4) obtain, review, and use alleged Rosario material in his defense. (Id.)
On January 14, 2005, the New York Supreme Court, Bronx County, denied Petitioner's motion, finding that: (1) counsel conducted appropriate pre-trial investigation of existing medical evidence, the medical evidence was inconclusive, and counsel called Deborah Kaiser, Ph.D ("Dr. Kaiser"), an expert in the field of Child Abuse Syndrome, who corroborated Petitioner's theory of the case and rebutted the state's expert witness; and (2) Petitioner's argument that he was not advised of his right to testify was directly contradicted by the affirmation of his trial counsel. (Id. Ex. 7 (the "January 14 Order") at 7-9, 11.) The court also rejected Petitioner's arguments regarding the admissibility of uncharged-crimes evidence, the admissibility of hearsay evidence, and an alleged Rosario violation as procedurally barred, pursuant to N.Y.C.P.L. section 440.10(2)(a), because Petitioner raised those arguments on his direct appeal, and the Appellate Division considered and rejected them. (Id. at 9.) Lastly, the court found that Petitioner's argument relating to the jury voir dire was procedurally barred, pursuant to N.Y.C.P.L. section 440.10(2)(a) and (c), because the issue had been raised and rejected on direct appeal, and it would fail on the merits even if it were not procedurally barred because the empanelled juror in question was qualified to sit as a juror. (Id. at 10-11.) On April 7, 2005, the Appellate Division denied Petitioner's application for leave to appeal the denial of his first section 440.10 motion without explanation (Braun Aff. Ex. 9), and on June 9, 2005, the New York Court of Appeals denied leave to appeal, People v. Rosas, 5 N.Y.3d 768 (2005).
On July 5, 2005, Petitioner again moved pro se to vacate his judgment of conviction pursuant to section 440.10 on the grounds that he received ineffective assistance of counsel during plea negotiations at the end of his first trial and was deprived of due process because the prosecutor allegedly misstated - and defense counsel failed to correct - Petitioner's status as a predicate violent felon during those negotiations. (Braun Aff. Ex. 8.) After an evidentiary hearing, the court denied Petitioner's second section 440.10 motion by written order on March 5, 2007. (Id. Ex. 12 (the "March 5 Order").) The court held that all of Petitioner's arguments were procedurally barred, pursuant to N.Y.C.P.L sections 440.10(3)(c) and 440.30(1), because they "could have easily been included" in Petitioner's original section 440.10 motion. (March 5 Order at 23.) Even so, the court rejected each of Petitioner's arguments on the merits as well. (Id. at 16-23.) On August 7, 2007, the Appellate Division denied Petitioner's application for leave to appeal the denial of his second section 440.10 motion. (Braun Aff. ¶ 26.)
B. Procedural History
On September 19, 2005, Petitioner filed the instant Petition, pursuant to 28 U.S.C. § 2254, and an accompanying memorandum of law. (Doc. Nos. 2, 3.) The case was assigned to the Honorable Kenneth M. Karas, District Judge, who granted Petitioner's motion to stay his federal habeas petition so that he might exhaust his state court remedies. (Doc. No. 17.) On September 4, 2007, the case was transferred to the undersigned's docket. (Doc. No. 18.) Petitioner submitted a supplemental memorandum of law in support of his Petition on November 26, 2007, incorporating the arguments set forth in his previous memorandum of law and setting forth, inter alia, additional arguments regarding counsel's alleged conduct during plea discussions, including allegations that counsel failed to challenge the prosecutor's representation that Petitioner was a predicate violent felony offender. (Doc. No. 21.) Respondent submitted its opposition on February 1, 2008 (Doc. No. 24), and Petitioner submitted a reply on February 25, 2008. (Doc. No. 43.)
These documents were received by the Court's Pro Se Office on September 19, 2005 but were not officially docketed until September 30, 2005.
Petitioner challenges his conviction on two overall grounds. First, Petitioner argues that his trial counsel was ineffective for making a variety of errors that prejudiced the outcome of his trial. Second, Petitioner claims that his due process rights were violated by the indictment's failure to allege a sufficiently specific timeframe for the offenses.
II. DISCUSSION
A federal court may grant habeas corpus relief only if a claim that was adjudicated on the merits in state court (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).
A. Ineffective Assistance of Counsel
Petitioner argues that his trial counsel was ineffective for: (1) "opening the door" to the admission of prejudicial testimony in the form of prior uncharged crimes; (2) failing to effectively represent him during plea negotiations; (3) failing to conduct a medical investigation or call an expert witness; (4) failing to obtain Rosario material in the form of pre-trial statements made by his daughter to police concerning the alleged Brooklyn rape; (5) denying Petitioner his right to testify; and (6) failing to assure that a certain juror could be fair and impartial. (See Pet'r Mem. at 9-40; Braun Aff. Ex. 8 at 7.) Petitioner also argues that the cumulative effect of these errors itself provides a cognizable ground for ineffective assistance of counsel. (See Pet'r Mem. at 41-44.)
To prevail on a claim of ineffective assistance of counsel, a convicted defendant must demonstrate that: (1) counsel's performance "fell below an objective standard of reasonableness"; and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); accord Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012). This is a highly deferential standard under which a reviewing court "must make 'every effort . . . to eliminate the distorting effects of hindsight,' and must operate with a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 688-89). In reviewing ineffective assistance of counsel claims in a federal habeas proceeding, "[t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable - a substantially higher threshold." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (internal quotation marks omitted).
1. Exhaustion and Procedurally
Defaulted Claims
Before seeking federal habeas relief, a petitioner must first exhaust his federal constitutional claims in state courts. See 28 U.S.C. § 2254(b)(1)(A); Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003). "State remedies are deemed exhausted when a petitioner has: [(1)] presented the federal constitutional claim asserted in the petition to the highest state court (after preserving it as required by state law in lower courts) and [(2)] informed that court (and lower courts) about both the factual and legal bases for the federal claim." Ramirez v. Att'y Gen., 280 F.3d 87, 94 (2d Cir. 2001); cf. Dean v. Smith, 753 F.2d 239, 241 n.4 (2d Cir. 1985).
However, if a petitioner fails to meet a state procedural requirement after presenting his federal constitutional claim to the state courts, "the petitioner may be barred from receiving federal habeas corpus relief on the claim under the 'adequate and independent state procedural grounds' doctrine." Lebron v. Sanders, No. 02 Civ. 6327 (RPP), 2008 WL 793590, at *6 (S.D.N.Y. Mar. 25, 2008) (quoting Harris v. Reed, 489 U.S. 255, 262 (1989)); cf. Downs v. Lape, 657 F.3d 97, 101 (2d Cir. 2011) (explaining that a federal court's function on habeas review is "to determine only whether the state ruling falls within the state's usual practice and is justified by legitimate state interests, not whether the state court ruling was correct."). Specifically, "federal courts will not review questions of federal law presented in a habeas petition when the state court's decision rests upon a state-law ground that is independent of the federal question and adequate to support the judgment." Cone v. Bell, 556 U.S. 449, 465 (2009) (internal quotation marks omitted); accord Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
A state procedural bar is generally an independent and adequate state ground if it is "'firmly established and regularly followed.'" See Cotto, 331 F.3d at 239-40 (quoting Lee v. Kemna, 534 U.S. 362, 376 (2002)). Where a state court explicitly imposes a state procedural bar and offers "the last reasoned opinion on the claim," courts "presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). "Even where the state court has ruled on the merits of a federal claim 'in the alternative,' federal habeas review is foreclosed where the state court has also expressly relied on the petitioner's procedural default." Murden v. Artuz, 497 F.3d 178, 191, 191 (2d Cir. 2007) (quoting Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005)). Additionally, "if a federal claim has not been presented to the highest state court or preserved in lower state courts under state law, it will be deemed exhausted if it is, as a result, then procedurally barred under state law." Ramirez, 280 F.3d at 94; accord McKethan v. Mantello, 292 F.3d 119, 122 (2d Cir. 2002); see also Grey v. Hoke, 933 F.2d 117, 120 (2d Cir. 1991) ("For exhaustion purposes, a federal habeas court need not require that a federal claim be presented to a state court if it is clear that the state court would hold the claim procedurally barred." (internal quotation marks omitted)).
If a petitioner has failed to exhaust his claims and any attempt to exhaust his claims now would be procedurally barred in state court, then a petitioner's claims are generally unreviewable for federal habeas relief, unless the petitioner can demonstrate cause and prejudice or actual innocence. See Murden, 497 F.3d at 191, 194; Lebron, 2008 WL 793590, at *7. "To show cause, a petitioner must demonstrate that 'some objective factor external to the defense impeded [a petitioner's] efforts to comply with the State's procedural rule.'" Wynder v. Smith, No. 09 Civ. 4541 (LAP) (JLC), 2011 WL 70556, at *7 (S.D.N.Y. Jan. 10, 2011) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To demonstrate "prejudice," a "petitioner must show the constitutional errors raised in the petition actually and substantially disadvantaged petitioner's defense so that he was denied 'fundamental fairness.'" Roa v. Portuondo, 548 F. Supp. 2d 56, 59 (S.D.N.Y. 2008) (quoting Murray, 477 U.S. at 494). Alternatively, "[t]o demonstrate actual innocence a habeas petitioner must show that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (internal quotation marks omitted).
Here, two of the grounds upon which Petitioner alleges ineffective assistance are procedurally barred from habeas review. First, although Petitioner raised on direct appeal counsel's alleged error in "opening the door" to prejudicial testimony of uncharged crimes, the issue was not reviewable at that time because it involved matters outside the appellate record. See Rosas, 759 N.Y.S.2d at 866. Thus, the proper vehicle for such a claim was a section 440.10 motion. See People v. Morgan, 706 N.Y.S.2d 390, 391 (App. Div. 2000) (holding that an ineffective assistance claim that was procedurally defective on direct appeal should have been raised in a section 440.10 motion). However, because Petitioner did not raise his "opening the door" argument in either one of his section 440.10 motions, the argument is unexhausted. Thus, this argument is not ripe for habeas review. Nonetheless, because the state court would likely find it procedurally barred pursuant to N.Y.C.P.L sections 440.30(1) and 440.10(3)(c), particularly given that the state court has already invoked those procedural bars in denying Petitioner's second section 440.10 motion (see March 5 Order at 23), the Court deems the argument exhausted and barred, see Grey, 933 F.2d at 120-21 (deeming petition exhausted and forfeited); see also Murden, 497 F.3d at 192 ("[Section 440.10(3)(c)] constitutes an adequate state procedural bar to federal habeas review.").
As noted above, although the Appellate Division determined that Petitioner's argument was not reviewable on direct appeal because it turned on matters outside of the record, it held that Petitioner "received effective assistance" of counsel, at least based "[o]n the record before [it]." Rosas, 759 N.Y.S.2d at 866. Thus, to the extent that the Appellate Division did address Petitioner's "opening the door" argument on the merits, the claim is now exhausted. However, the Court has little difficulty concurring with the Appellate Division's conclusion that, based on the record, trial counsel did not provide ineffective assistance of counsel in deciding to cross-examine the alleged victim to elicit a possible motive for fabricating testimony regarding the alleged rape - namely, the fact that she resented her father's disciplinary rules. Therefore, even assuming that counsel's questions on cross-examination "opened the door" to evidence of Petitioner's uncharged crimes, the Court finds that counsel's conduct did not fall below an objective standard of reasonableness.
Petitioner likewise failed to raise his arguments regarding his counsel's conduct during plea negotiations - including counsel's alleged failure to correct the prosecution's statements that he was a predicate felon - in his first section 440.10 motion. Although Petitioner raised these arguments in his second section 440.10 motion, the state court explicitly rejected them as procedurally barred under N.Y.C.P.L. sections 440.10(3)(c) and 440.30(1). (March 5 Order at 23.) Because the state court - which authored the "last reasoned opinion" to address Petitioner's arguments (see Braun Aff. Ex. 9 (Appellate Division denying leave without explanation)) - found a state procedural bar, federal habeas review of Petitioner's arguments regarding counsel's conduct during plea negotiations is likewise barred, see Ylst, 501 U.S. at 803; see also Jones v. Stinson, 229 F.3d 112, 117 (2d Cir. 2000) ("When a state court judgment rests upon an adequate and independent state law ground, federal courts lack jurisdiction on direct review to consider questions of federal law decided by the state court."). The fact that Petitioner raised these arguments in his second section 440.10 motion does not excuse the procedural default. See Murden, 497 F.3d at 191.
Although the state court reached the merits of Petitioner's arguments in ruling on Petitioner's second section 440.10 motion, in stating that "[his] claims are technically procedurally barred" (March 5 Order at 23), the court also explicitly relied on his procedural default, which is sufficient to bar those claims from federal habeas review, see Murden, 497 F.3d at 191.
Moreover, Petitioner does not assert any "cause" for his failure to present these arguments in his first section 440.10 motion, and a review of the record leads the Court to conclude that he cannot. Indeed, the conduct underlying both claims occurred in his presence and during the course of or in between Petitioner's two trials; moreover, Petitioner included his "opening the door" argument in the direct appeal that he initiated a year before his first section 440.10 motion. Therefore, Petitioner had the knowledge and capability to raise these arguments in his first section 440.10 motion. His failure to do so, and his failure to now offer any explanation justifying his failure, indicates an absence of an "external" objective factor that prevented him from following state procedural rules. See Wydner, 2011 WL 70556, at *7. As such, Petitioner has not demonstrated "cause" sufficient to excuse his procedural default.
Nor has Petitioner alleged his actual innocence, and, even if he had, the Court finds that Petitioner has failed to show "that it is more likely than not that no reasonable juror would have convicted him." See Dunham, 313 F.3d at 730. Put another way, the Court finds that that the evidence adduced at trial was sufficient to convict him.
Accordingly, because Petitioner's arguments regarding counsel's "opening the door" to uncharged crimes and counsel's conduct during plea negotiations are procedurally barred and Petitioner has failed to demonstrate "cause and prejudice" or "actual innocence," the Court will not review either argument on the merits.
2. Failure to Conduct a Medical
Investigation or Call an Expert
Medical Witness
Petitioner next asserts that he received ineffective assistance of counsel because his attorney failed during his pre-trial investigation to "consult with a medical expert on child sexual abuse and ha[ve] the expert testify as to the [significance of the] lack of physical evidence." (Pet'r Mem. at 9.) The state court, in denying Petitioner's first section 440.10 motion without a hearing, rejected Petitioner's argument. (See January 14 Order at 7.) Basing its decision both on the trial record and on trial counsel's affirmation filed in connection with the section 440.10 motion, the state court found that: (1) the medical evidence surrounding the alleged rape was inconclusive; (2) trial counsel reviewed the medical records and engaged in a pre-trial investigation that determined that Petitioner's daughter had been sexually active when in her mother's custody; (3) trial counsel called a child abuse expert to testify that one in seven children lie about abuse; and (4) trial counsel was reasonable when he decided not to attack the daughter's credibility by noting the absence of physical evidence because the prosecutor could easily call a rebuttal witness. (See id. at 7-9.)
The Second Circuit has highlighted the importance of physical evidence in sex abuse cases where the evidence boils down to a "credibility contest" between the complainant and the accused. Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir. 2001); Lindstadt, 239 F.3d at 201. Nevertheless, although counsel has a duty to make reasonable investigations before trial, investigations are unnecessary where they would be counterproductive or wasteful. Gersten v. Senkowski, 426 F.3d 588, 610 (2d Cir. 2005).
A careful review of the record confirms the state court's findings in regard to Petitioner's first section 440.10 motion. First, the prosecution did not introduce Petitioner's daughter's medical records into evidence because the report did not indicate physical evidence of forcible rape. (See Second Trial Tr. 4.) According to trial counsel's affirmation, the medical records showed that there had been prior penetration, and trial counsel learned from the daughter's mother that the daughter had been sexually active prior to moving to the Bronx. (See Braun Aff. Ex. 5 ("Morofsky Aff.") ¶ 7.) Moreover, trial counsel noted in his affirmation that if he had called an expert to testify about the lack of physical evidence, the prosecution could easily thwart the implication that the daughter lacked credibility by calling its own expert on rebuttal to show that such physical evidence would not have existed if the rape occurred - as was the case here - one to six weeks prior to the examination. (Id.) Additionally, the prosecution did not call any medical experts to mitigate the lack of physical evidence of forcible rape, so there was no need for defense counsel to call expert witnesses for rebuttal purposes. See Gersten, 426 F.2d at 610 (noting that where diligent counsel draws a line because they have "good reason to think further investigation would be a waste," continued investigation on that matter is unnecessary).
Instead, counsel made the reasonable decision to focus on the daughter's motive to lie about the alleged attacks. (Morofsky Aff. ¶ 9.) To that end, counsel called on an expert in the field of child sexual abuse syndrome, who testified that one out of seven children falsely reports rapes by an adult relative. (See Second Trial Tr. 327-33, 349, 353.) The expert's testimony supported the defense theory that the daughter had fabricated the rape allegations in retaliation for Petitioner's strictness and rebutted the prosecution's psychological expert witness. Also, when cross-examining the daughter, trial counsel elicited testimony that she was bothered by her father's strict rules. (See id. at 41-89.) Having reviewed the record, the Court is persuaded that counsel's decision to forego medical expert testimony was not unreasonable and that, in any event, the inclusion of medical expert testimony would not have made any difference in the outcome at trial. Therefore, Petitioner was not denied effective assistance of counsel, and his request for habeas relief on this ground is denied.
Petitioner also argues, for the first time in his habeas petition, that defense counsel was ineffective for calling his psychological expert because the expert had "no background, education and experience in the relevant field." (Pet'r Mem. at 14-17.) Because Petitioner never made this claim in his first section 440.10 motion, the claim is unexhausted. Coleman, 501 U.S. at 735 n.1. The claim could, however, be deemed exhausted and procedurally defaulted because a state court would now find it procedurally barred. See id. ("[I]f the petitioner failed to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred[,] . . . there is a procedural default for purposes of federal habeas [review.]"). Nevertheless, procedural default is a waivable defense, and Respondent has made no effort to assert such a defense here. See Trest v. Cain, 522 U.S. 87, 89 (1997) ("[P]rocedural default is normally a defense that the state is obligated to raise and preserve if it is not to lose the right to assert that defense thereafter." (citations and internal quotation marks omitted)). Accordingly, because Respondent failed to assert the defense, the Court will review Petitioner's claim on the merits. Cf. 28 U.S.C. § 2254(b) ("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.")
"The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). As such, the decision "fall[s] squarely within the ambit of trial strategy, and, if reasonably made, will not constitute a basis for an ineffective assistance claim." Id.; see also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) ("A failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel."). By extension, where a petitioner alleges ineffectiveness of counsel for a decision to call an allegedly "incompetent" expert witness, courts review the expert testimony, and where counsel's performance was reasonable, an ineffective assistance claim will not lie. See, e.g., Illis v. Artus, No. 06 Civ. 3077 (SLT) (KAM), 2008 WL 5666638, at *20-22 (E.D.N.Y. June 5, 2008) (finding counsel's performance not unreasonable); Barreto v. Lattmore, No. C 09-1290 RS (PR), 2010 WL 2486638, at *8-9 (N.D. Cal. June 16, 2010) (same).
After a careful review of the record, the Court finds that trial counsel was not unreasonable in calling Petitioner's psychological expert witness, Dr. Kaiser. Dr. Kaiser testified that she: (1) received a master's degree and doctorate, spending at least part of her internship in graduate school participating in adolescent psychology; (2) was licensed to practice psychology in New York; (3) taught psychology at the University of California, Davis; (4) taught psychiatric residents for three years in a residency program; (5) belonged to the American Psychological Association and to the American Board of Forensic Examiners; (6) worked at clinics where she saw cases involving child sexual abuse; (7) was a consultant for the Queens District Attorney's Office Special Victims Bureau; (8) examined 275 children and treated seventy-five "in the area of child sexual abuse or assault"; (9) was qualified as an expert over 200 times in the fields of forensic psychology, child sexual abuse, child development, or battered woman's syndrome; and (10) was never before denied expert status when testifying in court. (Second Trial Tr. 327-33.) These qualifications directly belie Petitioner's argument that Dr. Kaiser possessed "no background, education and experience in the relevant field." (See Pet'r Mem. at 14-17.) As such, the Court finds that Petitioner's trial counsel, in deciding to call Dr. Kaiser, did not fall below Strickland's objective standard for reasonableness.
3. Failure to Obtain Rosario Material
Petitioner also alleges that his attorney provided ineffective assistance of counsel during both of his trials by failing to request statements made by Petitioner's daughter during the Brooklyn District Attorney's Office's investigation into a separate rape allegation. (See Pet'r Mem. at 23-26.) Petitioner asserts that he was entitled to those statements pursuant to N.Y.C.P.L. section 240.45(1)(a) and People v. Rosario, 9 N.Y.2d 286, 289-90 (1961). (See Pet'r Mem. at 22.)
As noted above, under New York law, prosecutors must provide a criminal defendant with the pre-trial statements of any witness who will be called to testify on behalf of the prosecution. See N.Y.C.P.L. § 240.45(1)(a); Rosario, 9 N.Y.2d at 289-90. Such statements are known colloquially as "Rosario material." At the first trial, the prosecutor requested a day-long adjournment of trial after the redirect examination of Petitioner's daughter because the prosecutor was concerned that potential Rosario material existed in the Brooklyn investigation. (First Trial Tr. 82-83.) When asked by the court, defense counsel stated that he was ready to proceed with cross-examination of Petitioner's daughter without adjourning to allow the prosecution time to determine the existence of any additional Rosario material, arguing that there was no compelling need to do so. (Id. at 83-87.) As noted above, the first trial resulted in an acquittal on one charge and a hung jury on the second charge. Thus, to the extent that a potential Rosario violation occurred during the first trial, it was irrelevant for purposes of the first trial because the remedy for a violation is reversal of the conviction. See Flores v. Demskie, 215 F.3d 293, 300 (2d Cir. 2000).
During the second trial, the record does not reflect that counsel requested any Rosario material. (Pet'r Mem. at 26.) However, even assuming that failure to do so constituted attorney error, Petitioner has not explained how this omission resulted in prejudice to him under Strickland. See Curry v. Burge, No. 03 Civ. 0901 (LAK) (AJP), 2004 WL 2601681, at *32 (S.D.N.Y. Nov. 17, 2004) (holding that there was no prejudice under Strickland because petitioner failed to set forth how the Rosario material that counsel allegedly failed to secure would have affected the outcome of the case). In fact, the record shows that trial counsel was able to effectively cross-examine Petitioner's daughter and elicit testimony impeaching her credibility. (See Second Trial Tr. 51-89, 132-36.) Without further elaboration as to how the failure to pursue Rosario material had "some conceivable effect" that "more likely than not altered the outcome in the case," see, e.g., Lindstadt, 239 F.3d at 204, Petitioner's allegations amount to little more than speculation and do not constitute ineffective assistance of counsel.
Indeed, given that Petitioner later pleaded guilty to an indictment in Brooklyn that charged him with rape, the Court finds there is a strong inference that any additional Rosario material with respect to the Brooklyn investigation would not have altered the outcome of Petitioner's case.
Thus, because Petitioner has failed to demonstrate prejudice under the second Strickland prong, Petitioner was not denied effective assistance of counsel with respect to his alleged failure to obtain additional Rosario material. Accordingly, the Court finds that the state court's ruling as to Petitioner's arguments with respect to that additional alleged Rosario material was neither contrary to nor an unreasonable application of Strickland.
4. Denial of Petitioner's Right to Testify
Petitioner further alleges that he received ineffective assistance of counsel because counsel prevented him from testifying at trial and did not inform him that the ultimate decision whether to testify was his to make. (See Pet'r Mem. at 32-33.) Petitioner asserts that had he known this, he would have testified. (See id. at 33.) The right to testify is "personal" to a defendant and can be waived only by him. See Chang v. United States, 250 F.3d 79, 82 (2d Cir. 2001) (citing Brown v. Artuz, 124 F.3d 73, 77 (2d Cir. 1997)). Defense counsel therefore have the obligation "to inform their clients of that right and to ensure that clients understand that the ultimate decision belongs to them, not counsel." Id. at 83.
In his first section 440.10 motion, Petitioner argued that he was never informed of his right to testify and that, had he known of his right, he would have testified over trial counsel's advice. (Braun Aff. Ex. 4 at 17, 20, 21.) Specifically, Petitioner asserted that, if trial counsel had advised Petitioner of his right, then, given Petitioner's determination to testify, there would have been a conflict with trial counsel, and trial "counsel would have noted the disagreement on the record to protect all parties." (Id. at 20.) According to Petitioner, had he testified, the trial outcome would have been different because the trial was essentially a credibility contest between Petitioner and his daughter. (See id. at 21.) Petitioner never expressly waived his right to testify on the record. (Cf. Second Trial Tr. 384.)
However, in his affirmation, trial counsel stated that he "discussed at length with [Petitioner] the possibility of testifying at trial," ultimately advising Petitioner that it would not be in his best interest to testify as there was "little to gain and much to lose" if his history of criminal convictions were disclosed. (See Morofsky Aff. ¶ 11; see also March 5 Order at 4 (stating that Petitioner testified at an evidentiary hearing regarding his second section 440.10 motion and admitted to pleading guilty to attempted murder in Illinois); id. at 8 ("Mr. Morofsky recalled that '[Petitioner] had several convictions. The most serious one was a conviction for attempted murder in Illinois sometime in the mid 80[]s. He had one or two other misdemeanor convictions where he did small amounts of jail time as well.[']").) Furthermore, at trial, counsel presented other witnesses whose testimony served the same purpose as Petitioner's potential testimony. For example, counsel called Petitioner's mother, who asserted that the rapes could not have occurred because other people were in the apartment at the relevant times. (See Second Trial Tr. 214, 220-21; Morofsky Aff. ¶ 11.) Trial counsel also elicited testimony from Petitioner's daughter that she was angry with her father because of his strictness, and counsel called an expert in child abuse to testify that children sometimes fabricate abuse. (See Second Trial Tr. 51-89, 132-36, 353.)
Relying on the record, Petitioner's assertions in his motion, and trial counsel's affirmation submitted with Respondent's opposition to the motion, the state court rejected Petitioner's claim in his first section 440.10 motion, finding that Petitioner's allegation was "completely contradicted by defense counsel's affirmation," which the court credited. (See January 14 Order at 11-12.)
Although the Second Circuit has found that "summary dismissal [of a defendant's assertion that he was denied the right to testify] would [be] inappropriate," courts have held that "the record as supplemented by . . . affidavits [from petitioner and trial counsel is] sufficient to support dismissal of the petition without holding a full-blown testimonial hearing." Rosario-Dominguez v. United States, 353 F. Supp. 2d 500, 518 (S.D.N.Y. 2005) (emphasis added). Here, the Court concurs with the findings of the state court and concludes that trial counsel's affirmation provides the more credible and plausible version of what transpired during trial. Indeed, trial counsel's version of events is significantly bolstered by the fact that Petitioner was acquitted of one count of rape at his first trial, where he also did not testify.
Accordingly, the Court finds that the state court's decision was neither contrary to nor an unreasonable application of Strickland and denies his Petition on this ground.
5. Alleged Juror Bias
Petitioner also claims ineffective assistance of counsel as a result of his attorney's failure to follow up with one of the jurors during voir dire and his failure to challenge the juror for cause or exercise a peremptory challenge. (Pet'r Mem. at 35, 37-41.)
During preliminary questioning of the first round of prospective jurors, the trial judge asked a particular juror if he could be fair. The juror responded, "I will try," which prompted the court to ask a series of follow-up questions:
THE COURT: Okay. When you say you will try, sir, I know that's an expression and I am not trying to pressure you.(Second Trial Tr. 76.)
PROSPECTIVE JUROR: I have never been on this sort of thing before.
THE COURT: All right.
PROSPECTIVE JUROR: I will try my best.
THE COURT: That's all we can ask . . . . Is there anything else you want to bring to my attention about anything that could affect your qualifications that I haven't asked you about?
PROSPECTIVE JUROR: Nothing that I know of.
The Second Circuit has held that because it is the "rare juror" who can "honestly guarantee that his feelings about the particular type of crime alleged would in no way affect his deliberations," United States v. Nelson, 277 F.3d 164, 202 (2d Cir. 2002) (citation omitted), an individual's commitment to "do his best," barring any initial predispositions, will not disqualify him for jury service, see United States v. Ploof, 464 F.2d 116, 118 (2d Cir. 1972). In New York, a juror may be challenged for cause only if he possesses a "state of mind that is likely to preclude him from rendering an impartial verdict based upon the evidence adduced at the trial." See N.Y.C.P.L. § 270.20(1)(b). "Prospective jurors who make statements that cast serious doubt on their ability to render an impartial verdict, and who have given less-than-unequivocal assurances of impartiality, must be excused." People v. Arnold, 96 N.Y.2d 358, 363 (2001) (emphasis added).
The record establishes no error in the voir dire process, as the juror made no statements that "cast serious doubt" on his ability to be impartial. (See Second Trial Tr. 76.) Specifically, the juror told the judge that he would "try [his] best" to be fair, and that there was "nothing [he] knew of which could affect his qualifications. (Id.) These responses did not provide any reasonable basis for counsel to challenge the voir dire process or question the juror's impartiality.
Furthermore, counsel's affirmation reveals that his decision not to exercise a peremptory challenge was not unreasonable. Prior to the exercise of peremptory challenges, counsel conferred with Petitioner regarding the jury selection process. (Id. at 232-33.) During that time, he explained to Petitioner that because he was on trial for forcibly raping his teenage daughter, the juror at issue was not likely to have strong negative feelings against him because he himself was not married, had no children, and lived with his adult nephew. (See Morofsky Affirmation ¶ 5); see also People v. Henderson, 844 N.Y.S.2d 475, 476-77 (App Div. 2007) (finding no ineffective assistance of counsel where trial counsel's decision not to challenge two jurors was a "tactical decision"). Thus, counsel's decision not to exercise a peremptory challenge against this juror, given the nature of Petitioner's charges, constituted "sound trial strategy" and not ineffective assistance of counsel. See Strickland, 466 U.S. at 689.
Accordingly, the Court finds that the state court's finding that counsel was not ineffective based on his treatment of the juror in question was neither contrary to nor an unreasonable application of Strickland.
6. Alleged Cumulative Errors
Petitioner asserts that the cumulative effect of the foregoing errors deprived him of effective assistance of counsel. (See Pet'r Mem. at 43.) Although this claim is unexhausted because Petitioner failed to bring it in his first section 440.10 motion, the Court reaches it, pursuant to 28 U.S.C. § 2254(b)(2), in order to deny it. Whether Petitioner's alleged deficiencies are considered individually or in tandem, the Court finds that they are either procedurally barred or meritless and that trial counsel's performance did not fall "below an objective standard of reasonableness." Strickland, 466 U.S. at 688. Accordingly, Petitioner was not denied effective assistance counsel, and the state court's decision was not an unreasonable application of clearly established law.
Alternatively, because Petitioner failed to raise this argument in his first section 440.10 motion, the Court deems it exhausted but forfeited because, were Petitioner to present it within a renewed section 440.10 motion, the state court would likely find it procedurally barred pursuant to N.Y.C.P.L. sections 440.30(1) and 440.10(3)(c). (See March 5 Order at 23); Murden, 497 F.3d at 192; Ramirez, 280 F.3d at 94. --------
B. Denial of Due Process
Petitioner also alleges that his due process rights were violated because the indictment failed to provide a sufficiently precise timeframe for the alleged crimes, thus depriving Petitioner of the opportunity to present a proper defense. (Pet'r Mem. at 45.) Specifically, Petitioner argues that the six-week period alleged in the indictment prevented him from being able to narrow the date on which the alleged rape could have taken place. (See id.)
As a general matter, a proper indictment must: (1) "contain[] the elements of the offense charged and fairly [inform] a defendant of the charge against which he must defend"; and (2) "[enable] him to plead an acquittal or conviction in bar of future prosecutions for the same offense." United States v. Resendiz-Ponce, 549 U.S. 102, 108 (2007) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)). On direct appeal, the Appellate Division rejected Petitioner's due process challenge, concluding that the six-week period "provided [Petitioner] with reasonable notice under the circumstances . . . where the victim was defendant's 14-year-old daughter who was living with him at the time the crimes occurred and the specified [timeframe] was her best recollection." Rosas, 759 N.Y.S.2d at 866.
This Court has previously held that challenges to state indictments will merit habeas corpus relief only where the indictment fails to satisfy the basic due process notice requirements of time, place, and essential elements of the crime. Edwards v. Mazzuca, No. 00 Civ. 2290 (RJS) (KNF), 2007 WL 2994449, at *5 (S.D.N.Y. Oct. 15, 2007). Alleging that the crimes occurred over a period of time can be sufficient to provide due process notice, especially where the complainant is a minor and provides inconsistent testimony as to when the events took place. See id. (finding no constitutional defect where indictment specified seven-month period during which petitioner committed several crimes in a single day). Furthermore, although it becomes more difficult to prepare a defense when the alleged acts took place over a longer period of time, courts have consistently concluded that timeframes longer than the six-week period alleged in the indictment do not violate the Constitution. See, e.g., Fawcett v. Bablitch, 962 F.2d 617, 619 (7th Cir. 1992) (no constitutional defect where indictment specified a six-month period for two incidents of sexual contact with a minor); Hunter v. New Mexico, 916 F.2d 595, 600 (10th Cir. 1990) (no constitutional defect where information specified a more-than-three-year period for charges of sexual penetration of a child without identifying specific dates for the crimes). This is not surprising given that requiring child victims to recount the specific dates and times of abuse would effectively shield their abusers from prosecution.
Also, by the time the second trial commenced in April 1999, the timeframe for the alleged crime had narrowed considerably. At the first trial, the evidence showed that the first rape occurred on a weekday and the second one on a Saturday. The jury acquitted Petitioner on the first count and deadlocked on the second count. Thus, by the time of the second trial, Petitioner knew that the timeframe alleged in the indictment was narrowed to a Saturday between April 19 and May 31, 1999. Cf. People v. Willette, 490 N.Y.S.2d 290, 293 (App Div. 1985) (two-month period narrowed to late evening or early morning hours by bill of particulars). Nor was Petitioner prevented from asserting his defense at trial. To the contrary, trial counsel called Petitioner's mother, who testified that Petitioner's daughter must have been lying because Petitioner and the daughter were never alone together during the relevant time period. (Second Trial Tr. 214, 220-21.))
Therefore, the Court finds that Petitioner was not deprived of his right to a sufficiently specific timeframe in his indictment. Because the Court finds that the Appellate Division's conclusion - namely, that "[t]he specified time period provided [Petitioner] with reasonable notice under the circumstances," Rosas, 759 N.Y.S.2d at 866 - was neither contrary to nor an unreasonable application of Hamling and its progeny, the Court rejects Petitioner's due process argument as a basis for habeas relief.
III. CONCLUSION
For the foregoing reasons, Petitioner has failed to establish his entitlement to habeas relief pursuant to 28 U.S.C. § 2254. Accordingly, the Court denies Petitioner's application. In addition, because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); see Love v. McCray, 413 F.3d 192, 195 (2d Cir. 2005). The Clerk of Court is respectfully directed to enter judgment in favor of Respondent and to close this case. SO ORDERED.
/s/_________
RICHARD J. SULLIVAN
United States District Judge Dated: January 29, 2013
New York, New York
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Petitioner is appearing in this matter pro se.
Respondent is represented by Justin Braun and Jillian Elizabeth Wieder, Office of the District Attorney, Bronx County, 198 E. 161st Street, Bronx, New York 10451.
A copy of this Memorandum and Order was sent to:
Erry Rosas #99-A-6017 Otisville Correctional Facility P.O. Box 8 Otisville, New York 10963