Opinion
01-CV-3251 (JBW), 03-MISC-0066 (JBW)
August 20, 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
Petitioner was put on trial for the gunpoint robbery of a John Delisser, a supervisor at the hotel at which petitioner worked. The evidence against petitioner was overwhelming. It included both petitioner's confession to police and the trial testimony of Timothy Rivers, another "victim" of the robbery, who testified that he helped plan the event and that his status as a victim was staged.
Petitioner's testified in his own defense, contending that he was with his girlfriend the entire day of the incident while she was having her hair weaved at a beauty salon. He denied police.
The jury convicted petitioner for first degree armed robbery. He was sentenced as a persistent violent felony offender to 25 years to life in prison.
His conviction was affirmed on direct appeal by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied.
After petitioner filed his federal habeas application, the proceedings were stayed to allow him to pursue a motion to vacate judgment in state court. The motion was denied by the trial court. Leave to appeal to the Appellate Division was denied.
Petitioner's sole claim in support of his application for a writ of habeas corpus is that he was denied the effective assistance of trial counsel in violation of the federal Constitution. Petitioner is represented in this proceeding by retained counsel, who tacitly seeks to amend petitioner's application by raising previously unstated arguments in support of the ineffectiveness claims. Whether to allow amendment of the application is a bothersome question that, as discussed briefly below, will not delay decision because all of petitioner's claims are meritless.
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 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 nay 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. 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. 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 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).
IV. 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.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 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 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.
V. 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 defence." 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 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 (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, 321 F.3d at 136 (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).
VI. Certificate of Appealability Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No, 02-2320, 2003 U.S. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VII. Analysis of Claims
Petitioner claims that he was denied the effective assistance of trial counsel. In his initial pro se habeas application, petitioner complained that counsel (1) failed to prepare for trial, as evidenced by his waiver, without petitioner's consent, of petitioner's right to testify before the grand jury and by his failure to familiarize himself with petitioner's criminal record, leaving him unprepared for the Sandoval hearing; (2) failed to serve timely notice to the court and the prosecution concerning potential alibi witnesses; and (3) failed to request jury instructions regarding petitioner's alibi, the voluntariness of petitioner's statements to police, and Rivers' status as an interested witness. Petitioner later sought amendment of the petition to add another claim of ineffectiveness: (4) that counsel lied to the trial court when explaining why alibi notice manner; (6) that counsel failed to object to the trial court's Sandoval ruling; (7) that counsel's summation was deficient; and (8) that counsel failed to preserve for appellate review claims regarding the jury instructions.
The claims that petitioner and his counsel seek to add to the habeas application appear to be untimely and do not relate back to the claims made in the initial application. Some of the claims appear unexhausted, Some would no doubt be deemed defaulted if now raised in the state courts. Whatever may be the case, because none of the claims merits habeas relief, this court opts not to slog through the swamp of procedural bars and exhaustion doctrine when it can instead avail itself of the straight and dry highway of resolution on the merits. The habeas application is deemed amended to include all eight of the claims raised by petitioner and counsel. All claims are meritless under any possible standard of review.
Petitioner first claims that trial counsel was ineffective for failing to prepare for trial, as evidenced by his waiver, without petitioner's consent, of petitioner's right to testify before the grand jury and by his failure to familiarize himself with petitioner's criminal record, leaving him unprepared for the Sandoval hearing. Assuming to be true petitioner's claim that counsel waived his right to appear before the grand jury without petitioner's permission, petitioner cannot demonstrate that he was prejudiced thereby. He was afforded a jury trial and was convicted by a petit jury after testifying before it. Any prejudice suffered by petitioner was rendered harmless by his conviction at trial by the petit jury, which assessed his guilt under a heightened standard of proof. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989).
petitioner's criminal record sheet. He was provided a copy and given time to analyze it. He argued cogently and successfully to prevent the prosecution from asking petitioner on cross-examination about the underlying facts of his prior convictions for first and second degree robbery. Counsel's suggestion for a "compromise" — allowing the prosecutor to ask petitioner only whether he had previously been convicted of a felony — was accepted by the trial court and was sensible defense strategy. Habeas relief on this ground is not warranted.
Petitioner claims that trial counsel was ineffective for failing to serve timely notice to the court and the prosecution concerning potential alibi witnesses. Petitioner contends that his girlfriend and others who were at the beauty salon would confirm that he was at the salon for basically the entire day during which the robbery occurred. Petitioner does appear to have repeatedly asked counsel to provide the court with notice that he wished to present alibi witnesses. Counsel did not do so, as he explained to the court:
THE COURT: Before the jury returns to the courtroom, are there any applications by counsel?
MR. STUTMAN: Judge, I did speak with the Court earlier and I informed the District Attorney about the situation that I had with my client's alibi witness.
My client also seems to indicate that in some of the paperwork that he submitted to the Court and the District Attorney was a notice, he is checking through that now. Be it now or later I would like to just place the statement on the record, and have my investigator up here.
THE COURT: You don't need an investigator.
MR. STUTMAN: I relied on information coming from him.
THE COURT: Let's assume what he tells me is true.
MR. STUTMAN: Right.
THE COURT: Okay, you have an application or something you where she was getting her hair weaved, and that it took the better part of the entire day, and that he was there.
My investigator said that he spoke with the witnesses and he didn't feel that they were forthright, and felt that they were somewhat hesitant or being very, fudging around, whatever the situation was.
He told me that they indicated that if he was there, we couldn't keep track of where he was all day long while we were working, and then on another occasion he went back and spoke with her again, and in all honesty he said to me that to bring her in would be like she would perjure herself, that's the impression he got from speaking with this person.
I had asked him again the other day to reach out and call her again, at my client's request. At that time my investigator told me that she really couldn't answer the question because her appointment book was not available.
I gave her a call yesterday and I, in response to my questioning again he said he was there with his lady friend, and that's how she remembers, that they were there from the beginning of the day until the end of the day. My client now expects that I should be able to call the witness on his behalf.
Again, I would state to the Court that my investigators's Mike Gray son, very forthright —
(Whereupon, a discussion was held off the record).
MR. STUTMAN: There are, my client is showing matters, statements in my file, basically letters to me, one dated May 29th 1996, and one dated June 7, `96.
The first letter of May, I helped him write this, that letter as of the 30th day of May, 1996, that you or some representative of your office file a notice of intention to call alibi witnesses on my behalf, which should be included in my omnibus motion.
And, June 7, he's written to me, also it states that I am writing you once again to, with the same things that I requested in my last letter dated May 29th, '96, that you or a representative of your office file a notice of intention to me by my investigator, and in accordance with the law I would have to turn over the name, address, or in some way make that alibi witness available to the District Attorney, and I was afraid that perhaps that might have a negative impact.
If the District Attorney did speak to this witness, this witness might decline to state, and to be consistent with an alibi defense, and not knowing what transacted between my client and this witness, or what this witness might say to the District Attorney, could very well have resulted in this witness becoming a witness for the District Attorney.
And, again, I did rely, I know I'm saying this over and over again, I did rely on my investigator's representations. I appreciate that.
THE COURT: I appreciate that.
Counsel, would it be correct to say that you did not file a alibi notice pursuant to 250.20 of the law, is that correct, of the Criminal Procedure Law?
MR. STUTMAN: Yes, Judge.
THE COURT: And that the first time that the Court and the People were notified of it was this morning when the People are about to complete their case and about to put their last witness on?
MR. STUTMAN: I think I brought it up yesterday or the day before, but in any event, it was during the course of the trial that it was brought out.
THE COURT: My only quandary is, again, having spoken — What you did bring up yesterday was that you would ex — you explored that possibility and you found out they weren't alibi witnesses.
MR. STUTMAN: Right, I went back to my office and my client did call me and ask me if I would call the witness. I dId. and yesterday she told me on the phone what I've related to the Court, that she recalls that he was there with his lady friend, he was there for the better part of the day, so I just wanted the record to clearly reflect this.
THE COURT: Judge, may my client address the Court?
I have heard from you, you're his lawyer, you can speak for him.
THE COURT: Okay, I have heard counsel's statement on the record with respect to potential alibi witnesses, and I am familiar with the competence of the investigator who is working with the defendant, that the defendant is indeed well served by having an experienced investigator and experience lawyer representing him, but the Court also has a responsibility, too, that's not to call people who from investigation indicate that the testimony would not be favorable to their client, or even worse, to be perjurious.
Based upon that, plus the fact that there's no excuse for not complying with 250.20 of the Criminal Procedure Law, and that the People have almost completed their case, the application to call alibi witnesses is denied.
Trial Tr. at 263-70. Counsel's conclusion that his client's interests would be harmed by providing notice of alibi witnesses to the state was reasonable trial strategy. Habeas relief on this ground is not warranted.
It is not necessary to decide whether defense counsel's candid statement to the court was required on ethical grounds.
Petitioner claims that trial counsel was ineffective for failing to request jury instructions regarding petitioner's alibi, the voluntariness of petitioner's statements to police, and Rivers' status as an interested witness. None of these claims are meritorious.
Even assuming that petitioner would have been entitled to each of these instructions and that counsel's performance was deficient for having failed to seek them or for having failed to call an alibi witness, in light of the overwhelming evidence of petitioner's guilt there is no reasonable probability that the outcome of the proceeding would have been different if the instructions had been given or the witnesses called. The jury was instructed in general about its Counsel argued at length that Rivers was an interested witness because he was testifying in hopes of receiving a favorable disposition on another matter.
There was no real question of the voluntariness of petitioner's statements to police.
Petitioner claims that trial counsel lied to the trial court when explaining why alibi notice was untimely. He premises this accusation on the fact that counsel's activity log, submitted to the court in support of his request for payment of fees, does not demonstrate that either counsel or his investigator ever spoke with the potential alibi witnesses. The claim was rejected by the trial court when made on petitioner's motion to vacate judgment. The absence of log entries is insufficient to demonstrate that counsel did not interview the potential witnesses. It strains credulity that counsel would perjure himself in this manner. Habeas relief on this claim is not warranted.
Petitioner claims that trial counsel was ineffective for failing to investigate petitioner's alibi defense in a timely manner. The claim is belied by the record. As discussed above, counsel explained to the court during the trial that he had made sufficient efforts to investigate petitioner's alibi. Habeas relief on this claim is not warranted.
Petitioner claims that trial counsel was ineffective for failing to object to the trial court's Sandoval ruling. The court's decision to limit cross-examination of petitioner with respect to his prior felony convictions was not error. Trial counsel's performance in this regard was proper. Habeas relief on this ground is not warranted.
Petitioner claims that trial counsel's summation was deficient because it was "casual," prosecution's witnesses. Counsel suggested that petitioner's inculpatory statement to police was coerced and that he had a believable alibi. Habeas relief on this claim is not warranted.
Finally, petitioner claims that trial counsel was ineffective for failing to preserve for appellate review claims regarding the jury instructions. There is no indication in the Appellate Division's decision that it denied petitioner's jury-instruction claims based on a procedural default. Petitioner would appear therefore to have suffered no prejudice for the failure to preserve these claims. In addition, since the jury-instruction claims are without merit — as discussed briefly above — petitioner was not prejudiced by the failure.
VIII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.