Opinion
Civil Action No. 9:97-CV-0792 (FJS/DEP)
November 8, 2002
FRANCIS A. ALOI, ESQ., For Petitioner: ALOI LAW OFFICES, SAMUEL F. PRATO, ESQ., For Petitioner: PRATO LAW OFFICES, Rochester, NY.
For Respondent: HON. ELIOT SPITZER ROBERT A. SIEGFRIED, ESQ., Attorney General of the JEFFREY M. DVORIN, ESQ. State of New York Assistant Attorneys General The Capitol Litigation Bureau, Albany, NY.
REPORT AND RECOMMENDATION
Petitioner June Benson Thompson, a New York State prison inmate as a result of a 1992 Albany County Supreme Court conviction for rape in the first degree, sodomy in the first degree and robbery in the second degree, has commenced this proceeding seeking federal habeas relief pursuant to 28 U.S.C. § 2254. In her petition, Thompson raises three separate grounds for relief, including 1) denial of a fair trial, in light of the trial court's refusal to authorize a disbursement of funds required for the defense to present expert testimony of an "addictionologist" to explain the effects caused by the ingestion of crack cocaine on the user of that substance; 2) cruel and unusual punishment, based upon the alleged harshness of her prison sentence; and 3) ineffective assistance of appellate counsel, based upon her attorney's failure to raise several arguments on direct appeal from her conviction. Respondent opposes the petition, arguing both that it is untimely and that it should be rejected on the merits. For the reasons set forth below, I find that the petition is timely, but nevertheless recommend its dismissal.
Attached to Thompson's petition is a legal memorandum in support of her claims. See Petition (Dkt. No. 1).
I. BACKGROUND
Thompson's conviction stems from an incident which occurred in the early morning hours of December 15, 1990 in an apartment located in Albany, New York. During the course of the previous evening the victim, a student at the State University of New York at Albany, patronized some local taverns in the Albany, New York area, accompanied by a male companion. See Transcript of Trial of Willie James Brown and June Christine Benson, Index No. DA 216-91 ("Trial Tr.") at 546-47. At some point during that night the victim left a bar and attempted to walk to her apartment, which was located on Washington Avenue. Trial Tr. at 548. On her way home, the victim became disoriented and found herself lost in the Arbor Hill section of Albany, New York. Trial Tr. at 548-49.
Under New York law:
[t]he identity of any victim of a sex offense . . . shall be confidential. No . . . court file or other documents, in the custody or possession of any public officer or employee, which identifies such a victim shall be made available for public inspection.
New York Civil Rights Law § 50-b. In light of this provision, I will not refer to the victim by her name. Moreover, since both the petitioner and respondent have referred to the victim by name in their submissions to the court, I will direct the Clerk to seal the file in this proceeding.
The victim was subsequently approached by an individual later identified as Willie James Brown, who advised her that she was in an unsafe part of the city and should not be walking alone. Trial Tr. at 549. Brown offered to take her to an apartment where, according to Brown, his wife would call the woman's friends and ask them to come pick her up. Trial Tr. at 549-50. The two then entered a basement apartment where they met a woman, identified at trial by the victim as Thompson (Trial Tr. at 617), who asked the victim for the telephone numbers of her friends. Trial Tr. at 551. Thompson then left the apartment under the pretext of calling the victim's friends, and soon returned and told the victim that her friends were on the way. Trial Tr. at 551-52.
Thompson had indicated to the victim that the telephone in the apartment was not working. Trial Tr. at 551.
After a period of time, the victim became nervous and stated that her friends were not coming. Trial Tr. at 553. She then expressed to Thompson her desire to leave, which prompted Thompson to reply "Honey, you're not going anywhere." Id. Petitioner then demanded that the victim give Thompson all of her jewelry and money, which she did. Trial Tr. at 553-55. Petitioner also directed the victim to remove all of her clothing, and threatened to kill her if she did not. Trial Tr. at 555-56. The victim was thereafter instructed by the petitioner to go into another room in the apartment, where she was raped and anally sodomized by Brown. Trial Tr. at 556-58. During the incident, petitioner insisted that the victim perform oral sex on Brown; when she initially refused, the victim was struck by petitioner across the side of the face. Trial Tr. at 558-59. The victim then complied, and performed oral sex on Brown. Trial Tr. at 559.
At some point following the forced sexual acts, Brown told the victim to "get [her] stuff and get the hell out of here." Trial Tr. at 560. The victim then grabbed her clothes and ran out of the apartment, partially dressed, and hailed a taxicab. Tr. at 561. The victim, who was still crying, told the cab driver "they're after me. They just raped me." Id. The cab driver took the victim to the Albany Medical Center Hospital ("AMCH"), where she was examined. Trial Tr. at 560-64. That examination revealed an abrasion and contusion on her forehead, with swelling, as well as abrasions on her forearms and wrists. Trial Tr. at 416. Dr. Howard Snyder, who examined the victim, also indicated on the victim's chart that at the time of the examination Thompson was alert. Trial Tr. at 417-18. Dr. Snyder further testified that he did not smell alcohol on the victim's breath at the time of his examination or make any notation in her chart that the victim was intoxicated at that time. Trial Tr. at 421-22.
The victim entered the AMCH emergency room at 5:30 a.m., and was examined by Dr. Snyder at 8:30 a.m. Trial Tr. at 420-21.
II. PROCEDURAL HISTORY
A. State Court Proceedings
Petitioner and Brown were both indicted by an Albany County grand jury on May 7, 1991 and charged with rape in the first degree, in violation of N.Y. Penal Law § 130.35(1); two counts of sodomy in the first degree, in violation of N.Y. Penal Law § 130.50(1); and robbery in the second degree, in violation of N.Y. Penal Law § 160.10(1). See Appendix on Appeal ("App.") at A2-5. The two were tried jointly before separate juries in Albany County Supreme Court, beginning on July 6, 1992, with County Court Judge Thomas W. Keegan presiding.
During the course of the trial, petitioner indicated a desire to call an "addictionologist," Dr. David Ianacone, as a defense witness. According to petitioner, if allowed to testify Dr. Ianacone would have described the effects caused by the consumption of cocaine base — commonly referred to as "crack cocaine" — upon a person such as the victim. Trial Tr. at 1007-09. The court denied the request by Thompson's counsel for the expert witness fee required for the proposed expert testimony, finding that his testimony was not necessary because counsel could have elicited similar testimony from numerous other witnesses who had testified concerning the effects of crack cocaine. Trial Tr. at 1009. Judge Keegan also noted that the testimony was of questionable relevance because Dr. Ianacone had neither met nor examined the victim Trial Tr. at 1010-11.
Thompson testified that the victim had used crack cocaine on the night of the crimes (Trial Tr. at 828-32, 870-75), although petitioner could not positively identify the victim at the time of trial. Id. at 863-64.
This ruling effectively precluded Thompson, who was indigent, from calling Dr. Ianacone as a witness. Trial Tr. at 1009-10.
At the conclusion of the trial, petitioner was found guilty on all counts. Trial Tr. at 1237-38. Judge Keegan thereafter sentenced Thompson as a second felony offender to terms of imprisonment of ten to twenty years on the rape conviction, ten to twenty years on the oral sodomy conviction (to run consecutively with the sentence for the rape conviction), ten to twenty years on the anal sodomy conviction (to run concurrently with the sentence imposed for the rape and oral sodomy convictions) and seven and one half to fifteen years on the robbery conviction (consecutive with the other sentences imposed). As a result, Thompson was sentenced to an aggregate of between twenty-seven and one-half to fifty-five years imprisonment for her crimes of conviction. See App. at A239, 245-46.
Petitioner appealed her judgment of conviction to the New York State Supreme Court, Appellate Division, Third Department. That appeal resulted in a decision dated July 21, 1994 affirming the judgment of conviction and sentences in all respects. People v. Benson, 206 A.D.2d 674, 614 N.Y.S.2d 808 (3d Dept. 1994). Leave to appeal from that determination to the New York State Court of Appeals was subsequently denied on January 3, 1995. People v. Benson, 84 N.Y.2d 1029, 647 N.E.2d 457, 623 N.Y.S.2d 185 (1995).
Petitioner subsequently filed a collateral challenge to her conviction with the Third Department in January, 1997 in the form of an application for a writ of error coram nobis alleging ineffective assistance of appellate counsel. That application was denied on February 11, 1997. Petition (Dkt. No. 1) at 4; see also Dkt. No. 16.
B. This Proceeding
Petitioner commenced this proceeding in the United States District Court for the Southern District of New York on April 21, 1997. Dkt. No. 1 at 1. By order of District Judge Jed S. Rakoff issued on May 29, 1997, the proceeding was transferred to this district in light of the fact that petitioner's trial and conviction occurred within the geographical boundaries of the Northern District of New York. Dkt. No. 3. Then-Magistrate Judge David N. Hurd thereafter directed the respondent to respond to the petition (Dkt. No. 5), and on October 10, 1997, the Office of the Attorney General for the State of New York, acting on respondent's behalf, filed an answer and memorandum in opposition to the petition, and provided the court with most of the records associated with the relevant state court proceedings. Dkt. Nos. 10-11.
Neither party provided the court with a copy of the response in opposition to petitioner's coram nobis application or the Third Department's decision regarding that request. However, since I found that review of those documents was necessary for my analysis of the claims raised in the third ground of the petition, an individual from my staff contacted the Third Department and obtained copies of these documents. See Dkt. Nos. 15, 16.
This matter, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(c).
See also Fed.R.Civ.P. 72(b).
III. DISCUSSION
A. Timeliness
Respondent initially argues that the petition in this matter, which was filed on April 21, 1997, is untimely in light of the controlling one year limitation period under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). In support of that argument respondent notes that Thompson's conviction became final on April 3, 1995, and contends that because her petition was not filed within a reasonable time after the effective date of the AEDPA, which interjected a new one-year limitation period for filing such petitions (see 28 U.S.C. § 2244(d)(1)), it is untimely. Respondent's Memorandum (Dkt. No. 11) at 6-9. In support of that argument, respondent relies heavily upon the Second Circuit's decision in Peterson v. Demskie, 107 F.3d 92 (2d Cir. 1997).
It is true that in Peterson a panel of the Second Circuit held that a petitioner whose state court conviction became final prior to April 24, 1996 — the effective date of the AEDPA should be given a "reasonable time" after that date to file a petition under 28 U.S.C. § 2254, and that no specific guidance was provided regarding the precise contours associated with that term. Peterson, 107 F.3d at 93-94. Subsequent decisions issued by that court since the filing of respondent's brief, however, have provided refinement and crystallization of the Second Circuit's position on the issue, making it clear that prisoners whose convictions became final more than one year prior to the effective date of the AEDPA had until April 24, 1997 to file petitions seeking federal habeas relief. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998); see also Noble v. Kelly, 246 F.3d 93, 97 (2d Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 197 (2001). In making that determination, the court in Ross specifically rejected the suggestion made earlier in Peterson—that petitioners whose convictions became final prior to the effective date of the AEDPA need not be given a full year to seek habeas relief. Ross, 150 F.3d at 101-03.
Because the petition in this matter was filed on April 21, 1997, and thus within one year after the AEDPA's effective date, it is timely. I therefore recommend denial of respondent's request for dismissal of the petition on this procedural basis.
B. Standard of Review
Enactment of the AEDPA in 1996 brought about significant new limitations on the power of a federal court to grant habeas relief to a state court prisoner under 28 U.S.C. § 2254. Those new standards apply to petitions filed after the AEDPA's effective date even though they relate to convictions which predate enactment of the AEDPA. Williams v. Taylor, 529 U.S. 362, 402, 120 S.Ct. 1495, 1518 (2000); Boyette v. LeFevre, 246 F.3d 76, 88 (2d Cir. 2001).
Under the AEDPA, a federal court may not grant habeas relief to a state prisoner on a claim
that was adjudicated on the merits in State court proceedings unless 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); see also Noble, 246 F.3d at 98; Boyette, 246 F.3d at 88. The AEDPA also requires that in any such proceeding "a determination of a factual issue made by a State court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotes omitted).
The Second Circuit has provided additional guidance concerning application of this test, noting that:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: (1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled? (2) If so, was the state court's decision "contrary to" that established Supreme Court precedent? (3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
Because the AEDPA's restriction on federal habeas power was premised in no small part upon the duty of state courts to uphold the Constitution and faithfully apply federal laws, the AEDPA's exacting review standards apply only to federal claims which have been actually adjudicated on the merits in the state court. Washington v. Schriver, 255 F.3d 45, 52-55 (2d Cir. 2001). Accordingly, deference is not mandated under section 2254(d) if a state court decides the case on a procedural basis, rather than on the merits. See Sellan v. Kuhlman, 261 F.3d 303, 309-12 (2d Cir. 2001).
In Sellan, the Second Circuit answered the question of whether deference under section 2254(d) is mandated if a state court decides a case without citing to federal law or otherwise making reference to a federal constitutional claim. Specifically, that court held that deference is required if the federal claim was presented to the state court and there was an adjudication on the merits, even though the state court's decision lacks explicit reference to the federal claim or to federal case law. Sellan, 261 F.3d at 311-12. As the Second Circuit explained,
the plain meaning of § 2254(d)(1) dictates our holding: For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law."
Sellan, 261 F.3d at 312 (emphasis added); see also Ryan v. Miller, 303 F.3d 231, 245-46 (2d Cir. 2002).
In his opinion in Sellan, Chief Judge Walker acknowledged that enlightenment in state court decisions as to the manner of disposition of federal claims presented would greatly enhance a federal court's ability, on petition for habeas review, to apply the AEDPA's deference standard. Sellan, 261 F.3d at 312. He noted, however, that a state court's failure to provide such useful guidance does not obviate a federal court's duty to make the analysis and pay appropriate deference if the federal claim was adjudicated on the merits, albeit tacitly so. Id.
When a state court's decision is found to be decided "on the merits", that decision is "contrary to" established Supreme Court precedent if it applies a rule that contradicts Supreme Court precedent, or decides a case differently than the Supreme Court on a set of materially indistinguishable facts. Williams, 529 U.S. at 405-06, 120 S.Ct. at 1519-20. Moreover, a federal court engaged in habeas review must also determine not whether the state court's determination was merely incorrect or erroneous, but instead whether it was "objectively unreasonable". Id. at 409, 120 S.Ct. at 1521; see also Sellan, 261 F.3d at 315. The Second Circuit has noted that this inquiry admits of "[s]ome increment of incorrectness beyond error", though "the increment need not be great[.]" Francis S., 221 F.3d at 111.
C. Denial of Expert Testimony
In the first ground for relief articulated in her petition, Thompson complains of the trial court's refusal to allow her to present testimony of Dr. Ianacone, an "addictionologist." According to the petition, Dr. Ianacone would have testified concerning the potential effects upon the victim after having used crack cocaine, including "the possibility of hallucination, and loss to the senses with respect to what observations a party ingesting crack cocaine could make." Petition (Dkt. No. 1) at 4-c. Thompson also claims that Dr. Ianacone would have opined for the jury that, had the victim used crack cocaine, she would have appeared "significantly less intoxicated" due to the effects of that drug. Id. Petitioner characterizes Judge Keegan's denial of funds for Dr. Ianacone as amounting to a deprivation of due process and of her right to a fair trial.
As noted earlier, this issue arises in the context of the trial court's denial of a request by petitioner's counsel for the court to defray the expense associated with hiring Dr. Ianacone as an expert witness. See Trial Tr. at 1007-1011. Since Judge Keegan's ruling, while not precluding petitioner from calling Dr. Ianacone, had the practical effect of denying her the opportunity to call this witness, I will consider this ground as one alleging the wrongful denial of the ability to call a witness in one's defense.
1. Clearly Established Supreme Court Precedent
"The right to present evidence is, of course . . . required by the Due Process Clause." Jenkins v. McKeithen, 395 U.S. 411, 429, 89 S.Ct. 1843, 1853 (1969) (citing, inter alia, Morgan v. United States, 304 U.S. 1, 18, 58 S.Ct. 773, 776 (1938)). This right is "particularly fundamental" in the context of criminal proceedings. Id. at 429, 89 S.Ct. at 1853; see also Washington, 255 F.3d at 56 (right to present witnesses to present a meaningful defense is a fundamental constitutional right) (citing, inter alia, Taylor v. Illinois, 484 U.S. 400, 408-09, 108 S.Ct. 646, 652-53 (1988)).
This right, however, is not unlimited. Courts have recognized that the ability to present expert testimony at trial is nevertheless "limited by the requirements of relevancy and by the trial court's traditional discretion to prevent prejudicial or confusing testimony." Washington, 255 F.3d at 56 (citations and internal quotation marks omitted). On habeas review, errors of the trial court in this regard must be viewed under the "lenient harmless error review." Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000) (citing Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 1722 (1993)) (requiring "substantial and injurious effect or influence in determining the jury's verdict").
2. Contrary To, or Unreasonable Application of, Supreme Court Precedent
In the present case, petitioner's appellate counsel argued to the state reviewing court that, inter alia, Thompson's due process rights were violated by Judge Keegan's ruling concerning the proposed testimony of Dr. Ianacone. See Appellate Brief at 14-15.
Thompson's appellate counsel argued that "the right of a defendant in a criminal trial to present witnesses in support of his defense is a fundamental ingredient of due process." See Appellate Brief at 14-15. In support of this proposition, appellate counsel cited People v. Morales, 125 A.D.2d 605, 509 N.Y.S.2d 658 (2d Dept. 1986). Appellate Brief at 15. The Morales court in turn referenced the Supreme Court's decision in Jenkins in discussing the due process rights of a criminal defendant to call witnesses in his or her own defense. Morales, 125 A.D.2d at 606, 509 N.Y.S.2d at 660.
In ruling on the merits of this aspect of Thompson's appeal, the Third Department held that "[t]he admission of expert testimony is ordinarily a matter committed to the sound discretion of the trial court," finding that in this instance the trial court's discretion was not abused. Benson, 206 A.D.2d at 675, 614 N.Y.S.2d at 809. Although the Third Department did not specifically address Thompson's constitutional argument in its decision, "[n]othing in the phrase 'adjudicated on the merits' requires the state court to have explained its reasoning process." Sellan, 261 F.3d at 311. Rather, all that is required to trigger the statutory standard of review under AEDPA is the issuance of a decision finally resolving the parties' claims, with res judicata effect, that is based on substantive, rather than procedural, grounds. See Pressley v. Bennett, No. 01 CIV. 5831, ___ F. Supp.2d ___, 2002 WL 31014828, at * 7 (S.D.N.Y. Sept. 10, 2002) (citing Sellan).
Thus, a summary order could well constitute an adjudication on the merits, triggering the "unreasonable application" test of § 2254(d)(1). Mance v. Miller, No. 01 CIV. 5243, 2002 WL 377533, at *3 (S.D.N.Y. Mar. 8, 2002) (citing Sellan).
Since the Third Department addressed the merits of Thompson's claim regarding her ability to call Dr. Ianacone as an expert witness, this court is required to afford that decision deference under the AEDPA even though it did not specifically refer to Thompson's due process claim. See, e.g., Sellan, 261 F.3d at 311; Pressley, 2002 WL 31014828, at * 7.
As the Third Department noted in its decision on petitioner's appeal, the trial court acted well within its discretion in rejecting trial counsel's request for the funds necessary to secure the testimony of Dr. Ianacone. Dr. Ianacone had never examined or met with the victim. Trial Tr. at 1010. It was never established that the victim had used crack cocaine on the night she was attacked; indeed the only testimony suggesting that the victim had consumed crack cocaine on the night she was attacked was that of Thompson. Trial Tr. at 828-32, 870-75.
Notably, however, Thompson never informed the detective who questioned her soon after the incident that the victim was looking for drugs or that she had smoked crack cocaine on that night. Trial Tr. at 901-02. Nor did Thompson request that her statement to the police include any reference to the victim's alleged use of drugs. Trial Tr. at 902-03. Additionally, Thompson's testimony regarding the victim's claimed drug use was uncorroborated by other witnesses, and directly contradicted by the victim. Trial Tr. at 969.
With respect to Thompson's claims that the proposed testimony would have demonstrated that Thompson's memory was impaired by her alleged use of crack cocaine, thereby rendering her version of what transpired on the night of the crimes "suspect," (see Petition (Dkt. No. 1) at 4-c), I note that the victim's testimony of what occurred that night, and notably her claims regarding the rape and sodomy, was amply corroborated by other independent evidence adduced at trial. That buttressing evidence included her prompt reporting of the incident to the taxicab driver hailed by her outside of the apartment where she found herself on the night in question, as well as the testimony of Dr. Snyder, who examined the victim at the AMCH on the morning of December 15, 1990 and observed a facial injury consistent with her testimony of having been slapped hard on the side of the face. Trial Tr. at 416. Dr. Snyder also observed abrasions on both wrists, as well as on the victim's forearms. Id.
Also corroborating the victim's version of the relevant events was a statement given by the petitioner to police on April 14, 1991, in which Thompson stated that she was aware that Brown was forcing the victim to have sexual relations with him. Trial Tr. at 854-56. Further verification of the victim's account was provided by Marian Bynum, an occupant of the apartment on the night in question, as well as her daughter, Nikki Brooks. Both of those individuals testified that they were in a bedroom of the apartment at the time of the incident, and corroborated the victim's version of what transpired on that evening; both testified that petitioner and Brown were present in the apartment when the victim was raped and sodomized, and both heard Thompson strike the victim during the time she was being sexually assaulted. Trial Tr. at 242-48, 346-54.
Petitioner also claims that the testimony of Dr. Ianacone was necessary to cast doubt on Dr. Snyder's observations of the victim during his examination of her. In this regard, Thompson appears to argue that Dr. Ianacone's proposed testimony that the victim's use of crack cocaine could have masked signs of the victim's state of intoxication (see Petition (Dkt. No. 1) at 4-c), would have rebutted the testimony of Dr. Snyder, who had reported that the victim did not exhibit signs of being intoxicated at the time of his examination. Trial Tr. at 421-22. I note, however, that the victim herself testified that she consumed alcohol at seven separate locations before she became disoriented on the night of the crimes. Trial Tr. at 546-48. Since the jury was therefore well aware that the victim had been drinking on the night she was attacked, the value of any testimony concerning the effects that crack cocaine may have had in masking the signs of intoxication concerning the victim was necessarily de minimis.
In short, the trial court's rejection of the testimony of Dr. Ianacone falls comfortably within constitutional bounds, and the Third Department's finding that Judge Keegan did not abuse his discretion in effectively precluding Dr. Ianacone's testimony was neither contrary to, nor an unreasonable application of, Jenkins or Taylor. I therefore recommend dismissal of ground one of Thompson's petition.
D. Cruel and Unusual Punishment
In the second ground of her petition, Thompson argues that notwithstanding her acknowledged status as a second felony offender (see App. at A-239), her sentence of twenty-seven and one-half to fifty-five years imprisonment is so harsh and excessive as to run afoul of the Eighth Amendment's prohibition against cruel and unusual punishment.
This portion of Thompson's petition, however, overlooks the firmly established principle that "[n]o federal constitutional issue is presented where, as here, the sentence is within the range prescribed by state law." White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) (citing Underwood v. Kelly, 692 F. Supp. 146 (E.D.N.Y. 1988), aff'd mem., 875 F.2d 857 (2d Cir. 1989)); see also Jackson v. Lacy, 74 F. Supp.2d 173, 181 (N.D.N.Y. 1999) (McAvoy, C.J.) ("[i]t is well-settled . . . that a prisoner may not challenge the length of a sentence that does not exceed the maximum set by state law.").
Based upon her submissions, I construe this ground of Thompson's petition as a claim that the sentence imposed constitutes a violation of the Eighth Amendment. That amendment, however, forbids only extreme sentences which are "grossly disproportionate" to the crime. Harmelin v. Michigan, 501 U.S. 957, 995, 111 S.Ct. 2680, 2701-02 (1991) (citation and internal quotes omitted). It is well-established that a sentence of imprisonment that is within the limits of a valid state statute is not cruel and unusual punishment in the constitutional sense.
See White, 969 F.2d at 1383; Lou v. Mantello, No. 98-CV-5542, 2001 WL 1152817, at *13 (E.D.N.Y. Sept. 25, 2001) (citing White). In this case, Thompson has not alleged — nor does it appear — that the sentence imposed exceeded the range available to the sentencing court based upon the crimes of which she stands conviction. Under N.Y. Penal Law § 130.35, rape in the first degree is a class B violent felony offense. Id.; People v. Krzykowski, 293 A.D.2d 877, 880, 742 N.Y.S.2d 138, 140 (3d Dept. 2002). Thompson could have been sentenced to a prison term of up to twenty-five years for her conviction of this crime. See People v. Coppaway, 281 A.D.2d 754, 754, 722 N.Y.S.2d 813, 814 (3d Dept. 2001). Thompson's convictions on two counts of sodomy in the first degree — also a class B violent felony (see N.Y. Penal Law § 130.50) — could have similarly resulted in the imposition of a sentence of up to twenty-five years imprisonment. Ramirez v. Headley, No. 98 CIV. 2603, 1998 WL 788782, at *3 (S.D.N.Y. Nov. 10, 1998). Finally, a person convicted of second degree robbery, a class C felony (see N.Y. Penal Law § 160.10) is subject to a maximum term of imprisonment of seven and one-half to fifteen years. People v. Lioto, 174 Misc.2d 351, 355, 664 N.Y.S.2d 414, 416 (N.Y.Co.Ct. 1997), aff'd in mem., 261 A.D.2d 883, 691 N.Y.S.2d 225 (4th Dept.), leave denied, 93 N.Y.2d 1021, 719 N.E.2d 941, 697 N.Y.S.2d 580 (1999). Thus, the lengths of the sentences imposed are clearly authorized by statute.
Moreover, it was well within Judge Keegan's discretion to impose consecutive, rather than concurrent, sentences regarding the crimes of which Thompson was convicted. The discretionary power of a trial court "includes the ability to impose consecutive penalties for multiple crimes." People v. Ramirez, 89 N.Y.2d 444, 450, 677 N.E.2d 722, 724, 654 N.Y.S.2d 998, 1000 (1996) (citations omitted) "[E]ven if the statutory elements of multiple offenses overlap, sentences may be imposed to run consecutively when multiple offenses are committed through separate and distinct acts, though they are part of a single transaction." Ramirez, 89 N.Y.2d at 451, 677 N.E.2d at 725, 654 N.Y.S.2d at 1001 (citing, inter alia, People v. Laureano, 87 N.Y.2d 640, 643, 664 N.E.2d 1212, 1214, 642 N.Y.S.2d 150, 152 (1996)). "Thus, consecutive sentences may be imposed when either the elements of the crimes do not overlap or if the facts demonstrate that the defendant's acts underlying the crimes are separate and distinct." Ramirez, 89 N.Y.2d at 451, 677 N.E.2d at 125, 654 N.Y.S.2d at 1001.
In the present case, after providing the jury with a charge regarding the criminal liability of one person for the conduct of another (see Trial Tr. at 1166-67; N.Y. Penal Law § 20.00), Judge Keegan instructed the jury as to the elements of first degree rape. Trial Tr. at 1167-72. In order to find Thompson criminally liable for the rape of the victim, the People were required to prove, inter alia, sexual intercourse between Brown and the victim. Trial Tr. at 1170-71. With respect to the sodomy convictions, Judge Keegan instructed the jury that Thompson could only be found guilty of those crimes if the People proved, beyond a reasonable doubt, inter alia, that Brown, aided and abetted by Thompson, engaged in deviate sexual intercourse with the victim — an element not required for the rape conviction. Trial Tr. at 1172-77. Finally, in finding petitioner guilty of second degree robbery, the jury necessarily found that she, inter alia, forcibly took property from the victim the night of the crimes. See Trial Tr. at 1178-81. Since the forcible taking of property is not an element of any of the other crimes of which Thompson was convicted, the jury necessarily found that she had committed that act (which is separate and distinct from any of the other acts required for her other convictions) beyond a reasonable doubt.
The deviate sexual intercourse required for the sodomy charges contained in counts two and three of the indictment required conduct separate and distinct from that which was required for a conviction on rape charge contained in the first count of the indictment. Compare Trial Tr. at 1169-70 with Trial Tr. at 1173-74.
Since Thompson has not established that her total, aggregate sentence of twenty-seven and one-half to fifty-five years of imprisonment was either unauthorized by New York penal law or violated her Eighth Amendment rights, I recommend that ground two of her petition be denied.
E. Ineffective Assistance of Appellate Counsel
In her third and final ground, petitioner argues that she was denied the effective assistance of counsel due to her appellate attorney's failure to raise certain legal arguments in the direct appeal of Thompson's state court conviction. Specifically, Thompson asserts that counsel should have raised several additional issues in the direct appeal of the conviction, including 1) the reliability of the victim's identification of the petitioner; 2) the claimed unfairness of the Sandoval hearing and the resulting testimony at trial concerning Thompson's prior crimes; 3) alleged failure of proof on the question of accessory liability; 4) questions regarding the voluntariness of petitioner's statement to police; and 5) Judge Keegan's allegedly erroneous jury instructions regarding intent and reasonable doubt.
People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849 (1974).
All of these theories were raised by Thompson in her coram nobis application.
1. Claims for Which Deference under AEDPA Is Required
I first consider those aspects of the third ground raised in Thompson's petition for which deference under the AEDPA is mandated.a) Clearly Established Supreme Court Precedent
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This Amendment has been construed to require that indigents be provided with assigned counsel for their first appeals as of right. Douglas v. California, 372 U.S. 353, 356-58, 83 S.Ct. 814, 816-17 (1963). This right to counsel requires the effective assistance of appellate counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14 (1970).
In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court discussed the factors a court must consider in evaluating an ineffectiveness claim. To establish ineffective assistance, a party must demonstrate a) that counsel's representation fell below an objective standard of reasonableness measured by the prevailing professional norms; and b) resulting prejudice — that is, a reasonable probability that, but for counsel's unprofessional performance, the outcome of the proceeding would have been different. Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 1850 (2002) (citing Strickland); see also Frederick v. Warden, Lewisburg Corr. Facility, 308 F.3d 192, 196-97 (2d Cir. 2002) (applying the Strickland standard to claim of ineffective assistance of appellate counsel). Additionally, to establish that her appellate counsel's conduct was objectively unreasonable, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made." Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) (citing Jones v. Barnes, 463 U.S. 745, 754, 103 S.Ct. 3308, 3314 (1983)), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001); see also Atkins v. Miller, 18 F. Supp.2d 314, 320 (S.D.N.Y. 1998) (citation omitted). Rather, to prevail upon such a claim, Thompson must demonstrate that her counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Clark, 214 F.3d at 322. Thus, appellate counsel cannot be considered ineffective for making a strategic decision to abandon weaker arguments and, instead, develop only those arguments more likely to succeed. Gonzalez v. Duncan, No. 00-CV-1857, 2001 WL 726985, at *6 (E.D.N.Y. June 22, 2001) (citing Jones, 463 U.S. at 753, 103 S.Ct. at 3313) ("[a] brief that raises every colorable issue runs the risk of burying good arguments . . . in a verbal mound of strong and weak contentions").
Since the Strickland standard is clearly established federal law, as determined by the Supreme Court of the United States (see Cone, ___ U.S. at ___, 122 S.Ct. at 1849-50), I must determine whether those findings of the Third Department which adjudicated Thompson's coram nobis claims on the merits (Dkt. No. 16) were contrary to, or an unreasonable application of, Strickland.
b) Contrary To, or Unreasonable Application of, Supreme Court Precedent
i) Identification of Thompson
Thompson initially argues in this ground that the victim's identification of Thompson "never reached a level of constitutional certainty to permit proof that petitioner was involved in the crimes 'beyond a reasonable doubt.'" Petition (Dkt. No. 1) at 4-d. In support of this claim, Thompson argues, inter alia, that the victim was drunk and disoriented on the night she was attacked, that she kept her head "down" during the time she was in the apartment (which she described as "dark"), and was unable to identify Thompson from a photographic array prior to the trial. Id. Petitioner claims that, given these circumstances, her appellate counsel rendered ineffective assistance in failing to raise this issue on appeal. Id.
In opposing this aspect of the coram nobis application, the District Attorney argued that Thompson's claims regarding proof of her identity were without merit. See Dkt. No. 15, at ¶ 13. Since the Third Department denied this aspect of the coram nobis application on the merits (see People v. Benson [Thompson], slip op. (3d Dept. Feb. 11, 1997) (Dkt. No. 16)), my review is limited to determining whether the Third Department's decision denying her coram nobis application was either contrary to, or constituted an "unreasonable application" of, Strickland.
Although the Third Department denied the petitioner's application for a writ of coram nobis without referring explicitly to relevant federal case law, there is no basis to conclude that the court rejected the claims on non-substantive grounds. As such, the adjudication was "on the merits," and is therefore subject to review under the deferential standards prescribed in 28 U.S.C. § 2254(d)(1). See Sellan, 261 F.3d at 314.
Initially, I note that Thompson's identity was never in issue at the trial; she admitted being in the apartment with the victim on the evening of the attack, and testified that the victim had given Thompson her jewelry in order to purchase more crack cocaine. Trial Tr. at 870-76. This notwithstanding, this aspect of Thompson's petition overlooks the fact that at trial, the victim clearly identified Thompson as the woman who stole her money and jewelry, and who assisted Brown in raping and sodomizing her. See Trial Tr. at 617. Moreover, witnesses Bynum and Brooks both confirmed that petitioner and Brown were present in the apartment during the time the victim was raped and sodomized, and both heard Thompson strike the victim while she was being attacked. Trial Tr. at 242-48, 346-54. Finally, Judge Keegan clearly instructed the jury that it could only find Thompson guilty of the crimes charged if it was "satisfied beyond a reasonable doubt that the defendant . . . is the person who committed [the crimes]." Trial Tr. at 1182. Since there was overwhelming evidence that Thompson participated in the crimes of which she was convicted, the Third Department's denial of this aspect of Thompson's coram nobis application was neither contrary to, nor an unreasonable application of, Strickland.
ii) Sandoval Ruling
Thompson next faults her appellate attorney for failing to appeal the propriety of Judge Keegan's Sandoval ruling. Specifically, she argues that the prejudicial effects of allowing the jury to hear evidence of Thompson's past crimes greatly outweighed the probative value of such testimony, particularly in light of the fact that Judge Keegan permitted admission of evidence of certain prior convictions involving theft.
During its cross-examination of Thompson, the prosecution elicited testimony regarding these prior convictions. Trial Tr. at 886-92.
Petition (Dkt. No. 1) at 4-d.
In its response to Thompson's coram nobis application, the prosecution argued that this ground was "utterly lacking in merit". Dkt. No. 15, at ¶ 14. The Third Department agreed, rejecting this aspect of the coram nobis petition on the merits. See Dkt. No. 16. I must therefore determine whether that decision was either contrary to, or an unreasonable application of, Strickland.
After conducting a Sandoval hearing, Judge Keegan held that the prosecution could inquire concerning three different theft-related convictions previously entered against Thompson. Trial Tr. at 24-31. In so ruling, Judge Keegan noted that the convictions placed Thompson's credibility in issue. Trial Tr. at 31. After proof was closed, Judge Keegan specifically instructed the jury regarding the limited purpose for which evidence of Thompson's prior convictions was allowed, noting that
[t]he defendant's previous conviction — and I'm referring to the Defendant June Benson — or any immoral or vicious act to which she testified, may be considered by you only on how much you believe her testimony. You are free to believe her entire testimony despite her record or her admission of these acts. The choice is with you, ladies and gentlemen, but June Benson's criminal record has no direct bearing on the guilt or non-guilt of the defendant in this case. It only affects credibility.
Trial Tr. at 1155-56.
Sandoval rulings are "only redressable in a federal habeas corpus proceeding if . . . the particular errors were of constitutional magnitude." Hunter v. Greiner, 99 CIV. 4191, 2000 WL 245864, at *4 (S.D.N.Y. Mar. 3, 2000) (citing Benitez v. Senkowski, 97 Civ.7819, 1998 WL 668079, at *7 (S.D.N.Y. Sept. 17, 1998)). In order to merit habeas relief, the petitioner must establish that (1) the trial court erred in allowing the evidence into the record and (2) the evidentiary errors were "so pervasive as to have denied [petitioner] a fundamentally fair trial." Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985). Moreover, where, as here, the claim is that the trial court improperly allowed certain matters into evidence, as distinct from precluding admission of evidence, the court cannot grant habeas relief unless the disputed 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, [and] highly significant.'" Id. at 19 (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982)); see also Rios v. Hoke, No. 85-CV-1241, 1988 WL 101013, at *3 (N.D.N.Y. Sept. 19, 1988) (McAvoy, J.) (citing Collins and Nettles).
In this case, the record of Thompson's state court prosecution reflects that Judge Keegan properly balanced the probative value of Thompson's prior convictions against the prejudicial effect that the introduction of such acts on cross-examination would have had on Thompson. E.g., Gonzalez v. Portuondo, No. 00 CIV. 1357, 2001 WL 856600, at *11 (S.D.N.Y. July 30, 2001). Moreover, the trial judge's limiting instruction regarding the purpose for which such evidence was received (which the jury is presumed to have followed (see Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 733 (2000); Shariff v. Artuz, No. 97CIV.2882, 2001 WL 135763, at *3 (S.D.N.Y. Feb. 16, 2001) (citations omitted)), cured any possible undue prejudice which the petitioner may have suffered from Judge Keegan's Sandoval ruling. I therefore find that the Third Department's conclusion that this aspect of Thompson's coram nobis application was without merit was neither contrary to, nor an unreasonable application of, Strickland.
iii) Proof of Accessorial Conduct
Petitioner next argues that the prosecution failed to prove accessorial liability on the part of Thompson. In support of this claim, petitioner alleges that her accomplice liability under Penal Law § 20.00 could not have been established "since the victim obviously did not know that defendant was the person allegedly coercing her into having sex with Brown." Petition (Dkt. No. 1) at 4-e.
In its opposition to Thompson's coram nobis application, the prosecution argued that this contention was contrary to the evidence adduced at trial. Dkt. No. 15, at ¶ 15. Since the Third Department ruled on the merits of this component of the coram nobis petition (Dkt. No. 16), my review of this claim is once again limited to ascertaining whether that court's decision in this regard was either contrary to, or constituted an "unreasonable application" of, Strickland.
Under New York Penal Law § 20.00, "[w]hen 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." Id.
When viewed in light of this standard, the proof at trial amply supported Thompson's conviction as an accessory to Brown with respect to both the rape and sodomy crimes. It was Thompson who instructed the victim to remove all of her clothing, and threatened to kill her if she did not. Trial Tr. at 555-56. Thompson then directed the victim to go into another room, where she was raped and anally sodomized by Brown.
Trial Tr. at 556-58. Thompson ordered the victim to perform oral sex on Brown, cautioning her that she had "better do what I say." Trial Tr. at 559. When the victim refused, Thompson struck her across the side of the face. Id. Thompson again directed the victim to perform oral sex on Brown, which she eventually did. Id. As noted above, Bynum and Brooks corroborated this aspect of the victim's testimony.
Since Thompson's accessorial role in these crimes was clearly established at trial, I find that the Third Department's denial of this aspect of Thompson's coram nobis application, directed toward her appellate counsel's failure to raise this argument in the state courts, was neither contrary to, nor constituted an "unreasonable application" of, Strickland.
Based upon the evidence adduced at trial, it appears that Thompson was found guilty on the robbery charge as a principal in that crime. To the extent Thompson's habeas claim challenges the proof of Thompson's liability as an accessory to the robbery conviction, the record unequivocally demonstrates her complicity in that crime. Trial Tr. at 553-55.
iv) Voluntariness of Thompson's Statement
Petitioner also challenges her appellate counsel's failure to argue, on appeal, that her statement to the police was not voluntary in light of the totality of circumstances." Petition (Dkt. No. 1) at 4-e. Specifically, Thompson maintains that the police fabricated the basis for the search warrant which eventually resulted in her going to police headquarters, where she later provided the authorities with a statement. Id. Petitioner also argues that she was pressured and coerced into giving the police the statement which was later used against her at her criminal trial. Id. (citing Trial Tr. at 507-12).
Prior to enactment of the AEDPA, habeas courts considering claims relating to the voluntariness of both a waiver of one's rights under Miranda and a confession had generally held that state court findings that a defendant was given and understood his or her Miranda rights were presumed correct, but that the ultimate issue of the voluntariness of a waiver or confession was nonetheless subject to de novo review. E.g., Smith v. Sullivan, 1 F. Supp.2d 206, 211 (W.D.N.Y. 1998) (citing Carter v. Johnson, 131 F.3d 452, 461-62 (5th Cir. 1997) and Derrick v. Peterson, 924 F.2d 813, 822 (9th Cir. 1990), cert. denied, 502 U.S. 853, 112 S.Ct. 161 (1991)). Under the AEDPA, however, a new, more deferential standard has been interposed, "plac[ing] a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners." Williams, 529 U.S. at 399, 120 S.Ct. at 1516 (O'Conner, concurring in part). In light of the AEDPA, habeas relief may not be granted unless the state courts, in ruling on an individual's Miranda claims, unreasonably applied Supreme Court law. Cruz v. Miller, 255 F.3d 77, 80, 86-87 (2d Cir. 2001).
In opposing this aspect of the coram nobis application, the District Attorney argued that Thompson's claims regarding the voluntariness of her statement were "conclusory and unsupported". Dkt. No. 15, at ¶ 17. The Third Department agreed, denying this portion of the coram nobis application on the merits. Dkt. No. 16. That determination is therefore entitled to deference under the AEDPA absent a finding that it is contrary to, or represents an unreasonable application of, established Supreme Court precedent.
Under Miranda, "before a suspect may properly be subjected to custodial interrogation, he must be informed that he has the right to remain silent, that any statement he makes may be used in evidence against him, and that he has the right to have counsel present." U.S. v. Mathurin, 148 F.3d 68, 69 (2d Cir. 1998) (citing Miranda v. Arizona, 384 U.S. 436, 467-72, 86 S.Ct. 1602, 1624-26(1966)). In considering whether a party has voluntarily provided a statement to the police, courts are to consider the "totality of circumstances," including, inter alia, evidence of police coercion, the length of the interrogation, the defendant's maturity and education, and whether the police failed to advise the defendant of his or her rights to remain silent and to have counsel present during the custodial interrogation. Withrow v. Williams, 507 U.S. 680, 693-94, 113 S.Ct. 1745, 1754 (1993) (citations omitted). A coerced or otherwise involuntary statement may never be used for any purpose: "any criminal trial use against a defendant of his involuntary statement is a denial of due process of law . . .". Mincey v. Arizona, 437 U.S. 385, 398, 98 S.Ct. 2408, 2416 (1978) (emphasis in original); Smith, 1 F. Supp.2d at 212 ("it is clearly established that an involuntarily-given confession is inadmissible in either a federal or state criminal trial").
Thompson has not provided any legal basis upon which this court could find that her statements to the police should have been suppressed. Judge Keegan conducted an extensive hearing regarding Thompson's request to suppress her statements. See Transcript of Suppression Hearing (12/23/91) ("Suppression Tr."). At the close of that hearing, the trial judge found that (1) Thompson was advised of her Miranda rights by Detective Michael Sbuttoni before she provided any statement to the police; (2) Thompson indicated to Detective Sbuttoni that she understood her rights; (3) she voluntarily went to the police department for the purpose of discussing the events of December 15, 1990; (4) while at the police station, she provided information to the police which was thereafter reduced by Detective Sbuttoni to a written statement which petitioner signed; and (5) that statement was knowingly, intelligently and voluntarily made after Thompson had been advised of her Miranda rights. See Suppression Tr. at 74-78. Thompson has not rebutted any of these factual findings of Judge Keegan by any — much less clear and convincing — evidence. 28 U.S.C. § 2254(e)(1); Mask v. McGinnis, 233 F.3d 132, 139-40 (2d Cir. 2000).
Since appellate counsel had no legal basis upon which to challenge Judge Keegan's ruling regarding the admissibility of Thompson's statement, I find that the decision of the Third Department rejecting this aspect of petitioner's coram nobis application was neither contrary to, nor an unreasonable application of, Strickland. I therefore recommend that this aspect of the third ground in her petition be denied on the merits.
v) Jury Charge Regarding Intent
Petitioner has also argued, in support of her ineffective assistance of counsel claim, that her appellate attorney should have argued on appeal that Judge Keegan improperly instructed the jury as to the legal definition of "intent." Petition (Dkt. No. 1) at 4-e. Thompson contends that this aspect of Judge Keegan's charge was erroneous because it was "improper for the court to instruct the jury that the law presumes that a person intends the natural and probable consequences of his acts."
Petition (Dkt. No. 1) at 4-e (citing Trial Tr. at 1167-68, 1188). She in turn claims that she received ineffective assistance because her appellate attorney failed to object to this charge on appeal. Id.
In its opposition to Thomson's coram nobis application, the prosecution argued that thus claim was "utterly unsupported and totally without merit." Dkt. No. 15, at ¶ 18. Since the Third Department did not deny this aspect of the coram nobis application on procedural grounds (Dkt. No. 16), I find that deference under the AEDPA to that court's ruling on this issue is warranted.
The District Attorney addressed this aspect of petitioner's coram nobis application by arguing that "defendant's remaining arguments" were meritless (Dkt. No. 15).
Before a federal court may overturn a conviction due to an allegedly erroneous jury instruction, "it must be established not merely that the instruction is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400 (1973). The appropriate inquiry is not whether the trial court gave a faulty instruction, but rather "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Id. at 147, 94 S.Ct. at 400. Moreover, "a challenged portion of the jury instructions 'may not be judged in artificial isolation,' but rather must be judged as the jury understood it, as part of the whole instruction, and indeed, as part of all the proceedings that were observed by the jury." Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir.) (quoting Cupp), cert. denied, 519 U.S. 834, 117 S.Ct. 106 (1996); see also Beverly v. Walker, 899 F. Supp. 900, 913 (N.D.N.Y. 1995) (Scullin, J.), aff'd, 118 F.3d 900 (2d Cir.), cert. denied, 522 U.S. 883, 118 S.Ct. 211 (1997).
A careful review of Judge Keegan's charge reveals that in defining "intent," Judge Keegan instructed the jury that "[a] person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his or her conscious objective is to cause such result or engage in such conduct." Trial Tr. at 1166-67. The trial judge subsequently observed that a person acts with intent to deprive another of property "when his or her conscious aim or objective is to deprive another of the property or appropriate it to himself or herself." Trial Tr. at 1179. At no point in Judge Keegan's charge did he instruct the jury in the manner suggested by Thompson. Moreover, the initial charge provided by Judge Keegan with respect to intent is virtually verbatim to the New York Penal Law's definition of intent. See N.Y. Penal Law § 15.05(1).
This aspect of the charge was later repeated to the jury, at its request. Trial Tr. at 1214-15.
Since Thompson has not established that the instructions to the jury regarding intent were erroneous, a fortiori it was not improper, much less unconstitutionally deficient, for her appellate counsel not to raise this argument in his appeal. Thus, I cannot find that the Third Department's denial of this aspect of the coram nobis application was either contrary to, or an unreasonable application of, Strickland.
2. Claim for Which No Deference under AEDPA Is Required
The final issue raised in connection with petitioner's ineffectiveness claim entails her contention that Judge Keegan wrongfully instructed the jury as to the meaning of the phrase reasonable doubt when he purportedly "equated 'reasonable doubt' with guilt to a 'moral certainty.'" Petition (Dkt. No. 1) at 4-e (citing Trial Tr. at 1160).
In opposing Thompson's coram nobis application, the District Attorney argued, inter alia, that Thompson's claim regarding the alleged deficiency in the reasonable doubt charge was "unpreserved" for review by the Third Department. Dkt. No. 15, at ¶ 16. Where, as here, both procedural and substantive arguments are advanced by a party in the state courts, and no opinion was issued by the state court, a federal court may properly assume that the state court based its decision on state procedural grounds. Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993). Under such circumstances, a federal court may not review the claim unless the petitioner demonstrates both good cause for and actual prejudice resulting from her noncompliance with the state's procedural rule. Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999) (citations omitted); Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 126 (2d Cir. 1995). A further exception exists where the petitioner can show that the denial of habeas relief would leave unremedied a "fundamental miscarriage of justice" — that is, where a person who is actually innocent has been convicted and incarcerated as a result of a constitutional violation. Murray v. Carrier, 477 U.S. 478, 496, 106 S.Ct. 2639, 2649 (1986).
To establish cause for her default petitioner must show that some objective external factor impeded her ability to comply with New York's procedural rules. Id. at 488, 106 S.Ct. at 2645; Restrepo v. Kelly, 178 F.3d 634, 638 (2d Cir. 1999). Examples of external factors include "interference by officials," ineffective assistance of counsel, or that "the factual or legal basis for a claim was not reasonably available" at trial or on direct appeal. Murray, 477 U.S. at 488, 106 S.Ct. at 2645 (citations and internal quotations omitted). Attorney ignorance or inadvertence is not cause, since the attorney is considered the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must "'bear the risk of attorney error.'" Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 2566-67 (1991) (quoting Murray, 477 U.S. at 488, 106 S.Ct. at 2645).
Petitioner has not established cause for her procedural default resulting from the failure to object to this aspect of the jury charge, nor has she ever contended that she received ineffective assistance of trial counsel due to that counsel's failure to lodge an objection to this aspect of the charge. Since Thompson cannot establish cause, I need not decide whether she also suffered actual prejudice, since federal habeas relief on the basis of a defaulted claim is unavailable unless both cause and prejudice are demonstrated. E.g., Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985); Pou v. Keane, 977 F. Supp. 577, 581 (N.D.N.Y. 1997) (Kahn, J.) (citing Stepney).
Because trial counsel did not object to the jury charge, appellate counsel was precluded from litigating the jury instruction objection on appeal in light of New York's contemporaneous objection requirement. See Larrabee v. Smith, 14 F. Supp.2d 235, 239 (N.D.N.Y. 1998) (McAvoy, C.J.) (citing Gray v. Babbie, No. 94-CV-5123, 1998 WL 178824, at *7 (E.D.N.Y. Feb. 20, 1998) and N.Y.Crim.Proc.Law. § 470.05(2)).
The finding of petitioner's failure to establish cause for her default does not end the inquiry, since as earlier noted, a federal court may nonetheless properly invoke habeas review jurisdiction if convinced of the petitioner's actual innocence. On this question, the Second Circuit recently observed that "[t]o establish actual innocence, petitioner must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him. [A]ctual innocence means factual innocence, not mere legal insufficiency." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir.) (quoting Bousley v. United States, 523 U.S. 614, 623-24, 118 S.Ct. 1604, 1611(1998), and Schlup v. Delo, 513 U.S. 298, 327-28, 115 S.Ct. 851 (1995)) (internal quotation marks omitted), cert. denied sub nom., Dixon v. Keane,, ___ U.S. ___, 123 S.Ct. 426 (2002); see also Simpson v. Matesanz, 175 F.3d 200, 210 (1st Cir. 1999), cert. denied, 528 U.S. 1082, 120 S.Ct. 803 (2001). Thus, in considering whether Thompson's procedural default may be excused under this "actual innocence" exception, I must consider the sufficiency of the evidence adduced at trial. Dixon, 293 F.3d at 81.
The standard for reviewing claims of insufficient evidence 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, 99 S.Ct. 2781, 2789 (1979) (emphasis in original); Dixon, 293 F.3d at 81 (citing Jackson). As noted earlier, there was ample proof adduced at trial of petitioner's guilt as to all of the crimes of which she was convicted. See, e.g., pp. 21-22, ante. Petitioner has not provided the court with any evidence which indicates that she is actually innocent of any of the crimes of which she was convicted. As such, I find no basis to overlook the procedural default and address whether Thompson's counsel failed to adequately represent her by not addressing this procedurally barred claim. E.g. Simpson, 175 F.3d at 209-10 (finding that appellant failed to demonstrate actual innocence so as to enable court to excuse procedural default regarding claimed error in reasonable doubt instruction).
In light of the foregoing, I recommend that the third ground in the petition be denied.
IV. SUMMARY AND RECOMMENDATION
Petitioner has failed to demonstrate the denial of any constitutional right as a result of the trial court's refusal to authorize an expenditure to allow her counsel to call as a witness an addictionologist to testify concerning the potential effects of ingestion of crack cocaine on the part of someone such as the victim in this case. Petitioner has also failed to establish a violation of the Eighth Amendment as a result of the sentence imposed on her, which was within the range authorized by state law for the crimes of which petitioner was convicted. Finally, there is no merit to petitioner's claims that by failing to raise the issues referenced by Thompson in her third ground for relief herein in the direct appeal of her conviction, her appellate counsel was constitutionally ineffective. It is therefore hereby
RECOMMENDED, that the petition in this matter be DENIED and DISMISSED in its entirety, and it is further
ORDERED, that the Clerk seal the file in this proceeding in order to comply with N.Y.'s Civil Rights Law § 50-b.
Pursuant to 28 U.S.C. § 636(b)(1), the parties have ten days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is further ORDERED that the Clerk of the Court serve a copy of this report and recommendation upon the parties by regular mail.