Opinion
02-CV-3136 (JBW), 03-MISC-0066 (JBW)
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.
I. Facts and Procedural History
This petition was filed on May 22, 2002. Petitioner, sometimes referred to as defendant, claims:
Ground I: Petitioner's right under the 4th, 5th and 14th Amendments under the United States Constitution was violated by the unduly suggestive in-Court identification of Theodore Dixon which was also tainted by his non-spontaneous and non-exigent observation of the petitioner in custody during his attendance at court.
Ground II: The people failed to prove the defendant's guilt beyond a reasonable doubt and the conviction was against the weight of the evidence and violated petitioner's rights under the 5thand 14th Amendments of the United States Constitution.
Ground III: The trial court violated the due process and equal protection clause of the 5th and 14th Amendments of the United States Constitution when finding the petitioner guilty of criminal possession of a weapon in the second degree, when the crime could not have been committed without defendant also being guilty of the crime of the weapon that was used in the commission of the crime.
The evidence supports the following statements:
On January 8, 1997, at approximately 1:00 p.m., Jamal Archer was shot in the park area of Wingate High School in Brooklyn. Archer died two days later as a result of his injuries. At the same time and place, Theodore Booker Dixon was shot in the back. As a result of his injuries, Dixon required surgery and was hospitalized for four or five days at Kings County Hospital, Gavin Morris and William Garcia were also shot and sustained superficial wounds.
The shooting arose from series of altercations between two groups of teenagers that had begun the previous day. One group included defendant; his identical twin brother, Aquilino Soto; and defendant's half-brother, Ricardo Lara (hereinafter collectively "the Soto brothers"), Their adversaries were a group of teenagers from the Brownsville section of Brooklyn including Napoleon Edwards, a Wingate High School student.
On the morning of the shooting, school security personnel had diffused an altercation between the Soto brothers and Edwards at Wingate High School. Before school officials could question the Soto brothers, they left the school telling other students "it's on."
That afternoon, a group of teenagers who knew Edwards and lived in the Brownsville section of Brooklyn went to the park at Wingate High School to protect Edwards and fight the Soto brothers. Jamal Archer, Theodore Dixon, Gavin Morris and William Garcia were among this group. Edwards was not present, A group of other boys, including the three Soto brothers and another unidentified co-perpetrator, arrived at the park shortly after the Brownsville group. Ricardo Lara had a gun and either defendant or his twin brother also had a gun. The unidentified co-perpetrator then pulled a third gun and began shooting while the Soto twins blocked the exit to the park.
As a result of these crimes, defendant, his twin brother Aquilino Soto, and Ricardo Lara, were each charged, under Kings County Indictment Number 326/97, with two counts of Murder in the Second Degree (New York State Penal Law [hereinafter "P.l."] §§ 125, 25[1], [2]); one count of Attempted Murder in the Second Degree (P.l. §§ 110.00, 125.25[1]); two counts of Assault in the First Degree (P.l. § 120.10[1], [3]); two counts of Assault in the Second Degree (P.l. §§ 120.05 [2]); two counts of Assault in the Third Degree (P.l. § 12 0.00 [2]); one count of Reckless Endangerment in the First Degree (P.l. § 120.25); three counts of Criminal Possession of a Weapon in the Second Degree (P.l. § 265.03) and three counts of Criminal Possession of a Weapon in the Third Degree (P.l. § 265.02[4]), Lara was charged with an additional count of Attempted Murder in the Second Degree (P.l. §§ 110.00, 125.25[1]).
After a jury trial, defendant and his twin brother Aquilino Soto were each convicted of first degree manslaughter, first degree assault and all three second degree criminal weapons possession counts. On February 5, 1998, defendant was sentenced to concurrent terms of imprisonment of 11 to 22 years on the Manslaughter count, 11 to 22 years on the Assault count, and 71/2 to 15 years on the weapon convictions.
On July 20, 2000, defendant, acting through counsel, appealed from his judgment of conviction to the Appellate Division claiming that (a) an in court identification of defendant by surviving victim Theodore Dixon was unduly suggestive; (b) the evidence was legally insufficient to sustain the verdict; (c) the verdict was against the weight of the evidence; (d) the convictions on the three weapons counts should have been dismissed pursuant to New York Criminal Procedure Law (hereinafter "C.P.l.") § 300.40(3)(b) because the crime of second-degree criminal possession of a weapon constitutes a concurrent inclusory count to the homicide of which defendant was convicted; (c) defendant's sentence was harsh and excessive; (f) the cumulative errors committed by the trial court and the prosecution "demand" reversal; and (g) the hearing court abused its discretion in reopening the suppression hearing, and subsequently permitting the prosecution to introduce evidence regarding the recovery and vouchering of defendant's clothing after his arrest.
By Decision and Order dated February 20, 2001, the Appellate Division modified defendant's sentence on his first degree assault conviction from an indeterminate sentence of 11 to 22 years' imprisonment to an indeterminate sentence on that count of 3 to 6 years' imprisonment, and, as so modified, affirmed the judgment of conviction. The Appellate Division found that the evidence "was legally sufficient to establish defendant's guilt beyond a reasonable doubt," that the verdict was not against the weight of the evidence, and that the trial court had "providently exercised its discretion" in permitting Theodore Dixon's in-court identification. The Appellate Division further found that "defendant's remaining contentions [were] without merit." People v. Soto, 280 A.D.2d 620, 621; 720 N.Y.S.2d 820 (2d Dep't 2001).
By a letter dated April 3, 2001, defendant, acting through counsel, sought leave to appeal the Appellate Division's decision to the New York State Court of Appeals. In that application defendant asked the court to review "each and every point of law and argument" in his brief. By certificate dated May 4, 2001, defendant's application was denied. People v. Soto, 96 N.Y.2d 835, 729 N.Y.S.2d 456 (2001).
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. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 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 time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance arc 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 arc 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. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.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 rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Harriett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary 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 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may 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 "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," 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's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required, Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1083), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict," Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (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, 03-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); Cox 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 there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 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 Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XII. Analysis of Claims
A.
The Appellate Division's determination that the Supreme Court properly permitted Theodore Dixon to testify to the identity of defendant was an adjudication on the merits of defendant's claim that it was error for the court to admit that testimony. People v. Soto, 280 A.D.2d 620, 720 N.Y.S.2d 820 (2d Dep't 2001). This adjudication was not "contrary to or an unreasonable application of clearly established Federal Law as determined by the Supreme Court of the United States." See 28 U.S.C. § 2254(d)(1). See also Williams v. Taylor, 529 U.S. 362, 412 (2000); Cox v. Miller, 296 F.3d 89, 101 (2d Cir. 2002).
As the United States Supreme Court bas noted, "reliability is the linchpin in determining the admissibility of identification testimony," because "the standard, after all, is that of fairness as required by the Due Process Clause of the Fourteenth Amendment," See Manson v. Brathwaite, 432 U.S. 98, 113-14 (1976), Consequently, when determining admissibility of potential in-court identification testimony, the trial court must test the reliability of the proposed testimony by a "totality of the circumstances" standard.
In light of the totality of the circumstances, the trial court was within its discretion in allowing Dixon's identification testimony. Two police officers testified at trial that two eyewitnesses identified the Soto twins at lineups conducted at the 67th Precinct Station House. See Trial Transcript at 556-57, 990-91. Alonso Soto and Aquilino Soto were identical twins. The defendants' attorneys tested Dixon's identification testimony through extensive cross-examination. That there was a possibility that Dixon could have been wrong did not render the testimony unreliable as a matter of law.
There is no per se rule requiring a pre-trial proceeding on the issue of suggestiveness concerning in-court identifications. See United States v. Archibald, 734 F.2d 938, 940 (2d Cir. 1984); United States v. Brown, 699 F.2d 585, 593-94 (2d Cir. 1983). As the Archibald court noted:
When a defendant is sufficiently aware in advance that identification testimony will be presented at trial and fears irreparable suggestivity, . . . his remedy is to move for a line-up order to assure that the identification witness will first view the suspect with other[s] of like description rather than in the courtroom sitting along at the defense table.Archibald, 734 F.2d at 942, Special procedures arc required "only where . . . the defendant has moved in a timely manner prior to trial for a lineup; and despite that defense request, the witness has not had an opportunity to view a fair out-of-court lineup prior to his trial testimony [,]", United States v. Archibald, 756 F.2d 223, 224 (2d Cir. 1984). Thus, a trial court is "within its allowable range of discretion in leaving the trustworthiness of the evidence to the time-honored process of cross-examination." See Archibald, 734 F.2d at 940; Brown, 699 F.2d at 593, Even if an in-court identification was so unreliable as to amount to a "show-up," the absence of a pre-trial procedure does not require reversal unless it was so unreliable as to "constitute a denial of fundamental fairness" by creating "a very substantial likelihood of irreparable misidentification." Sims v. Sullivan, 867 F.2d 142, 145 (2d Cir. 1989) citing Manson v. Brathwaite, 432 U.S. at 116; Brown, 699 U.S. at 593-94.
This claim has no merit.
B.
Defendant's claim that his guilt was not proved beyond a reasonable doubt was "adjudicated on the merits" by the Appellate Division, People v. Soto, 280 A.D.2d 620, 720 N.Y.S.2d 820 (2d Dep't 2001). On habeas review, the deferential standard of 28 U.S.C. § 2254(d)(1) applies to defendant's claims. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
A reviewing court must defer to the jury's resolution of all questions regarding the credibility of witnesses, the inferences to be drawn, and the weight of the evidence, and must credit every inference that could have been drawn in the People's favor. See Wright v. West, 505 U.S. 277, 296 (1992); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993), cert. denied, 114 S.Ct. 1565; United States v. Rea, 958 F.2d 1206, 1221-22 (2d Cir. 1992); United Slates v. Jacobo, 934 F.2d 411, 415 (2d Cir. 1991); Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied, 488 U.S. 929 (1988).
The evidence established that either defendant or his identical twin brother, as well as two of defendant's associates, Lara and an unidentified other, possessed loaded firearms and that an unidentified accomplice fired a gun in Wingate Park on January 8, 1997 while the Soto twins blocked the exits to the park, Theodore Dixon described the Soto brothers, their clothing and general appearance, as well as that of the unidentified shooter. That testimony, together with his testimony that one of the "look-alike" perpetrators was forcing people against a gate while an unidentified co-perpetrator displayed his weapon, and at the same time the other "look-alike" was with a second group in a basketball court blocking their flight, established that both twins aided in the shooting. The jury heard Dixon's testimony regarding the hairstyle of the twins — that it was in braids or that it was in curls — as well as the testimony regarding the skin tone of the twins, and resolved any perceived inconsistencies and issues of credibility in the prosecution's favor. Because defendant and his twin brother were convicted on an acting-in-concert theory, it was unnecessary for the jury to distinguish the identity of the wins in the commission of the crime. This evidence was constitutionally sufficient to establish that defendant was an accessory to the manslaughter, assault and criminal possession of a weapon crimes.
Under the New York Penal Law, a person is guilty of Manslaughter in the First Degree when "with the intent to cause serious physical injury to another person, he causes the death of such person or of a third person," P.l. § 125.20(1), A person is guilty of Assault in the First Degree when, "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person," P.l. § 120.10[3]. A person is guilty of Criminal Possession of a Weapon in the Second Degree when "with the intent to use the same unlawfully against another . . . he possesses any loaded firearm." P.l. 265.03(2).
In addition, P.l. § 20.00, which governs accessorial liability, provides:
When one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.
P.l. § 150.05(3) provides that a person acts recklessly with regard to a particular offense;
"when he is aware of and consciously disregards a substantial and unjustifiable risk. . . . of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe."
The evidence established that (1) either defendant or his identical twin brother, and two of his associates — Ricardo Lara and an unidentified co-perpetrator — possessed loaded firearms with the intent to use them against their opponents; (2) an unidentified accomplice recklessly fired a gun into a crowd of teenagers; (3) defendant intentionally aided in the shooting by blocking the exits to the park; (4) the shooting caused the death of Jamal Archer; and (5) the shooting caused injuries to three other boys including Theodore Dixon who was shot in the back and sustained injuries serious enough to require surgery and extensive hospitalization, The evidence was legally sufficient to prove each of the elements of the crimes of which defendant was convicted beyond a reasonable doubt and was not against the weight of the evidence. See People's Brief at 40-54.
This claim has no merit.
C.
Defendant claims that his convictions on three counts of Criminal Possession of a Weapon in the Second (P.l. § 265.02 [4]) ought to have been dismissed as concurrent conclusory counts pursuant to C.P.l. § 300.40(3)(b). This claim presents no constitutional question for this Court to decide. See Pulley v. Harris, 465 U.S. 37, 41 (1984) (a federal court may not issue a writ of habeas corpus on the basis of a perceived error of state law).
The claim is without merit because the crime of Criminal Possession of a Weapon in the Third Degree (P.l. § 265.02[4]) is arguably not a concurrent inclusory count to first-degree manslaughter, See P.l. § 265.02(4); C.P.l. § 300.40(3)(b).
This claim has no merit.
D.
Those possible claims not discussed in this memorandum arc frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.