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holding that petitioner may not seek collateral review of claims pursuant to section 440.10 of the New York Criminal Procedure Law where those claims could have been, but were not, raised on direct appeal
Summary of this case from Burnett v. LeeOpinion
02-CV-5778 (JBW), 03-MISC-0066 (JBW)
October 23, 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, sometimes referred to as defendant, claims:
During opening statements, contrary to the petitioner's wishes counsel out-lined a mistaken identity defense. However, during summation counsel also submitted a frame defense claiming the witnesses were framing the petitioner despite any evidence support the defense. See trial transcripts of volume 2. Pg's. 499, 489, 496, 505-06-08-10.
Looking at the mistaken identity defense, counsel should have never submitted it to the jury. It was not only against the petitioner's wishes, but also against any reasonable possibility of success, e.g., counsel knew before the trial that four witnesses would testify that they seen the petitioner several times in bright lighting conditions, for long periods of time and even allegedly spoke to the petitioner face to face in broad, day light, while one witness claimed to have played a game of basketball with petitioner at a park. All of the witnesses positively identified the petitioner through photo arrays as well as through a line-up. With the overwhelming positive identification a mistaken identity defense could hardly be expected to prevail.
As for the second part of the defense, "Frame" this was the petitioner's desired defense, however counsel never submitted to the jury the petitioner's reason or any reason at all as to why the witnesses were framing the petitioner despite telling the court that he would do so. See trial transcripts volume 2, pg's. 88-89. Instead counsel stated to the jury (why are they using my client as a palsy . . . who knows). See T: transcripts pg. 496.
This strongly prejudiced the petitioner's defense. Not only did this part of the defense contradict the mistaken identity defense, but counsel gave no substantial reason why the witnesses were framing the petitioner — opened the door for the protection to make statements that "the witnesses had never known the petitioner before the incident, had no grudge against the petitioner or any reason to falsely accuse him of the crime. See trial transcripts volume 2, pg's, 541, 537, 540, 545, 552, 529.
The prosecution witness Armad Grace testified that be witnessed the petitioner on top of Dajuan Free stabbing him. See trial transcripts volume 2. pp. 228-30, However prosecution witness Steven Nesbitt dented Grace was even at the scene at all. See trial transcripts of volume 2 pg's. 146-47; see also witness grand jury testimony also confirms that Grace was not present to witness the stabbing. See grand jury testimony pg's 51-2, 73.
However counsel allowed Armad to come off the witness stand and give a dramatic demonstration of how he witnessed the petitioner on the top of Dajuan stabbing him, without establishing the fact through Steven Nesbitt or Tyrone Mendez's grand jury testimony that Armad was not present to see Dajuan being stabbed.
Set out below is a summary of arguments and theories petitioner suggest should have been adopted by his counsel;
During the testimony of prosecution witness Steven Nezbitt, the witness adamantly stated that he knew the petitioner from a basketball game he played with him at a park in the early month of July, 1996. See trial transcripts volume 2. Pg's. 172, 3-4, 149, See also grand jury testimony pg's, 86-95-6-7, Despite petitioner informing counsel that the petitioner was incarcerated the entire month of July counsel failed to object or even request for the court to take judicial notice of the fact, but allowed the false testimony to go uncorrected.
The petitioner was further prejudiced by this error made by counsel when the prosecution used the false testimony in her summation to show that the petitioner could not have been mistakenly identified.
The prosecution's expert witness Dr. Sundram testified that it was the victims' Dajuan lacerated right kidney that posed a risk of death and that Dajuan had blood surrounding his right kidney and because of on going bleeding he could continue to bleed, with infection and possible loss of that kidney and a possible loss of life as well, See trial transcripts of volume 2. Pg's. 131-32.
However, upon Dajuans' arrival at the hospital, Dr. Sundram had viewed Dajuan's injuries and wrote out a consultation report in which he stated:
"The injury to Dajuan's right kidney is minor and that both of his kidney are grossly intact,"
Although counsel did elicit from the expert witness that Dajuan received no medication for his injuries and that the kidney healed itself, the witness never retracted his statement that Dajuan's kidney was life threatening. Counsel should have impeached the witness with the report and had it introduced to the jury to show that the witness was bolstering the peoples case. Had he done so the petitioner may not have been found guilty of attempted murder but if any thing at all after the juror's knowledge of the report, maybe 2nd or even 3rd degree assault. The prosecution took advantage of counsel's neglect to use the report by telling the jury in her summation "There was a risk of death because the doctor told you there was. See trial transcript, Pg 513.
Before closing arguments counsel moved for a missing witness charge in regards to the absence of the prosecution's witness Marcus Duff who the prosecutor stated in her opening statements would be testifying to the petitioner stabbing Dajuan and also menacing himself with a knife. The court denied the report because the prosecution gave an oral accountability that the witness was being hospitalized at the trial and could not attend the trial, The petitioner has since written to the Nassau Medical Center under the foil act requesting for any records of a Marcus Duff being hospitalized at there facility. They have informed the petitioner that Marcus Duff was never there during any time of the trial. The petitioner faults his counsel for not challenging the truthfulness of the prosecution allegations. Had he done so the prosecution would not have been able to meet the burden of proof to prevent the witness charge from being granted in favor of the petitioner which could have further undermined the peoples case.
Looking at the overall performance of representation by counsel it can be said that counsel fell well below the level of assistance guaranteed the petitioner by the 6th amendment of the United States Constitution.
The evidence supports the following statements:
An altercation took place On the night of December 6, 1996, in Roosevelt, Nassau County. Petitioner threatened to shoot a young man named Dajuan Free and several of Free' Mends. Shortly thereafter, petitioner approached the group with a butcher's knife and chased Free across a highway into a private yard. When petitioner caught up with Free, he told Free that he was going to die. As Free struggled to escape, petitioner stabbed him in the back, shoulder, and armpit, inflicting life-threatening injuries. After spotting one of Free's friends, petitioner fled. Two days later, petitioner encountered two of Free's friends in Roosevelt. He approached them with a gun and said, "T just came home from jail and if I'm going back to jail, I'm going back to jail for killing somebody," Petitioner then walked away without carrying out his threat.
Following a jury trial, petitioner was convicted of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25[1]) and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02).
At his October 6, 1997, sentencing proceeding, petitioner claimed that he had been denied the effective assistance of trial counsel The court treated petitioner's claim as a prose motion to set aside the verdict, pursuant to section 330.30(1) of the New York Criminal Procedure Law. After denying the motion, the court sentenced petitioner, as a second felony offender, to a determinate term of imprisonment of fifteen years for attempted murder, and a concurrent indeterminate term of imprisonment of three and one-half to seven years for criminal possession of a weapon. In additional, the court entered an order of protection on behalf of Dajuan Free, effective for three years from the date of petitioner's release from prison.
Petitioner appealed from his judgment of conviction. With the assistance of counsel, petitioner filed a brief in the Appellate Division, Second Department, in which he claimed: (i) the suppression court improperly refused to suppress the identification testimony of four witnesses and evidence of a pretrial line-up procedure, (ii) the evidence was legally insufficient to support his conviction, and the jury's verdict was against the weight of the evidence, (iii) the trial court abused its discretion in admitting evidence of his prior incarceration, (iv) the prosecutor made certain improper remarks during summation, (v) the sentencing court improperly adjudicated him a "second felony offender," pursuant to section 400.21 of the New York Criminal Procedure Law, and (vi) the trial court improperly denied his motion to set aside the verdict on the ground that he had been denied the effective assistance of trial counsel because his attorney, among other things., (a) refused to argue that the People's witnesses had "framed" him in retaliation for the criminal complaint that he filed against them for mugging and stabbing him one month earlier, and (b) refused to introduce evidence that he was incarcerated during a period in 1996 when one of the People's witnesses claimed to have seen him at a basketball game.
Petitioner filed a prose supplemental brief, in which he claimed that the prosecutor had improperly foreclosed the grand jury's inquiries regarding the substance of his post-arrest statements to the police.
The Second Department unanimously affirmed petitioner's judgment of conviction. Specifically, the court ruled that (i) petitioner's legal-insufficiency claim was unpreserved for appellate review and, in any event, was meritless, (ii) the weight of the evidence supported the jury's verdict, (iii) the suppression court properly admitted the identification testimony and evidence of the line-up, and (iv) petitioner's remaining claims were either unpreserved for appellate review or without merit. People v. Wells, 272 A.D.2d 562, 709 N.Y.S.2d 94 (App.Div., 2d Dept, 2000).
On June 30, 2000, the Court of Appeals, denied petitioner's application. People v. Wells, 95 N.Y.2d 840, 713 N.Y.S.2d 147 (Ct.App. 2000).
Petitioner moved for reconsideration of his leave application. Upon reconsideration leave to appeal to the Court of Appeals was denied, People v. Wells, 95 N.Y.2d 872, 715 N.Y.S.2d 227 (Ct.App. 2000).
On or about May 7, 2001, petitioner filed a. pro se motion for an order, pursuant to section 440.10 of the New York Criminal Procedure Law, vacating his judgment of conviction on the ground that he was denied the effective assistance of trial counsel Specifically, petitioner claimed that counsel: (i) prevented him from testifying at trial, (ii) failed to impeach prosecution witness Armad Grace with conflicting grand jury and trial testimony of prosecution witnesses Steven Nesbitt and Tyrone Mendez, (iii) failed to impeach complainant Dajuan Free with a statement that he made at the hospital and with his grand jury testimony, (iv) presented an unreasonable and inadequate defense based on mistaken identity, (v) refused to argue that the People's witnesses had "framed" him in retaliation for the criminal complaint that he filed against them for mugging and stabbing him one month earlier, (vi) refused to introduce evidence that he was incarcerated during a period in 1996 when one of the People's witnesses claimed to have seen him at a basketball game, (vii) failed to impeach prosecution witness Shankar Sundram, M.D., with a certain hospital record, (viii) failed to object when the prosecutor asked certain leading questions and made certain improper summation remarks, and (ix) failed to challenge the prosecutor's explanation for not producing Marcus Duff as a trial witness.
By order entered September 27, 2001, the County Court denied petitioner's motion in its entirety without ordering a hearing, The court rejected petitioner's claim that defense counsel had prevented him from testifying because that allegation was made solely by petitioner, was categorically denied by counsel., was contradicted by the record, and appeared to be untrue. Order at 2 (citing N.Y. Crim. Proc. Law § 440.30[c], [d]). The court rejected the rest of petitioner's claims on a procedural ground, specifically, that those claims "were or should have been raised and determined on appeal." Older at 2 (citing N.Y. Crim Proc. Law §§ 440.10, 440.30.
On or about November 29, 2001, petitioner applied for leave to appeal from the County Court's order denying his motion to vacate judgment. On August 9, 2002, the Appellate Division denied the application.
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. 1993).
"[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 are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example., the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review), A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition," 533 U.S. 167, 181-82 (2001), Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000), Although the Supreme Court has now declared that AEDPA's one-year limitations period is not toiled 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 roust 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. 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 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 (I960) (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. VT. 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 (594.
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 arc "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 duly 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 heaving 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 e fleet 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 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994), Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, (58 (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 Stares 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, G3-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. Irvin, 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).
XIII. Analysis of Claims
A.
Petitioner claims that he was denied the effective assistance of trial counsel because his attorney (i) refused to argue that the People's witnesses had "framed" him in retaliation for the criminal complaint that he filed against them for mugging and stabbing him one month earlier, (ii) refused to introduce evidence that he was incarcerated during a period in 1996 when one of the People's witnesses claimed to have seen him at a basketball game, and (iii) prevented him from testifying at trial The decisions of the Appellate Division and the County Court rejecting those claims on the merits are entitled to deference. Petitioner has failed to show that counsel's conduct was objectively unreasonable and prejudicial to the defense.
In all types of legal representation, "counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment," Strickland v. Washington, ( 456 U.S. 668, 690 (1984). To prevail on a claim of ineffective assistance of counsel, the petitioner first must show that counsel's performance was so objectively unreasonable that "counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment," Id. at 687. Second, the petitioner must demonstrate actual prejudice, i.e., "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, This two-pronged test, in essence, requires the reviewing court to determine "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."Id. 686.
Petitioner is entitled to habeas corpus relief on his ineffective-assistance claims only if the state courts' decisions rejecting those claims were "`contrary to, or involved an unreasonable application of'" the Strickland standard. See Williams v. Taylor, 529 U.S. 362, 391 (2002) (quoting 28 U.S.C. § 2254[d][1]. Although neither the Appellate Division nor the County Court expressly applied the Strickland standard to petitioner's ineffective-assistance claims, the former's ruling that petitioner's claims were "without merit," and the latter's ruling that petitioner's claims (to the extent that they were not procedurally barred) were based on unsubstantiated and apparently false allegations (citing N.Y. Crim. Proc. Law § 440.30 [c], [d]), were not contrary to Strickland, Pursuant to 28 U.S.C. § 2254(d)(1), this court defers to the state courts' decisions. Petitioner's claims do not satisfy the strict criteria ofStrickland.
Petitioner claims that he was denied the effective assistance of counsel because his attorney refused to offer evidence and argue on summation that Dajuan Free and the other witnesses "framed" him, that is, falsely identified him as the assailant in retaliation for a complaint that he (petitioner) filed against Free for mugging and stabbing him in November 1996, Contrary to petitioner's claim, counsel's performance with respect to the November incident did not constitute ineffectiveness underStrickland. Counsel questioned both Free and prosecution witness Steven Nesbitt about the November incident on cross examination, although without suggesting that the victim of the attack was petitioner (Tr. Free: 107-09; Tr. Nesbitt: 177,) Counsel's decision not to pursue this defense more vigorously was based on what was arguably his reasonable professional judgment that it was "detrimental to [petitioner] and . . . to his case," was "not in [petitioner's] interest," and "would [not] have been helpful to [petitioner]" (Tr. 88-89). Evidence that Free mugged and stabbed petitioner would have suggested that petitioner., and not Free, sought retaliation. Such evidence might have persuaded the jury that petitioner had a strong motive to stab Free in December 1996.
Petitioner also claims that he was denied the effective assistance of counsel because his attorney refused to introduce evidence that he was incarcerated during July 1996, According to petitioner, such evidence was needed to impeach Steven Nesbitt's allegedly false testimony that he had played basketball with petitioner sometime that month, Counsel's refusal to offer evidence of petitioner's prior incarceration was not unreasonable under Strickland. The prejudice that petitioner would have suffered from the introduction of such evidence almost would arguably have outweighed any possible benefit. Counsel's decision not to offer that evidence was not unreasonable, and did not prejudice the defense.
These claims lack merit.
B.
Petitioner claims that he was denied the effective assistance of counsel because his attorney prevented him from testifying at trial, The County Court's decision and order, which rejected that claim pursuant to sections 440.30(4)(c) and (d) of the New York Criminal Procedure Law, is entitled to deference. In any event, this Court may independently reject petitioner's claim because it fails the Strickland test.
A defendant's right to testify on his own behalf is a "personal" right. It can he waived only by the defendant himself. Consequently, "the defendant must be allowed to testify if he so desires, regardless of strategic considerations that his lawyer concludes weigh against such a decision." Brown v. Artuz, 124 F.3d 73, 77 (2d Cir. 1997).
The burden of ensuring that the defendant is informed of his right to testify belongs to defense counsel. For that reason, any allegation by the defendant that counsel failed to meet that burden must satisfyStrickland's two-prong test for assessing the effectiveness of counsel's performance. The defendant can satisfy the first (i.e., "performance") prong of Strickland by demonstrating that his attorney either (i) failed to inform him that he had the right to testify and that the decision to do so ultimately belonged to him, or (ii) refused to accept the defendant's decision to testify and did not call him to the witness stand. Brown, 124 F.3d at 80 (citing league, 953 F.2d at 1534).
Petitioner does not establish either of the foregoing allegations. In furtherance of his claim that counsel prevented him from testifying, petitioner merely quotes a sidebar discussion that took place at trial shortly after the testimony of his purported alibi witnesses. During that discussion, defense counsel informed the court that he needed "a brief break to talk [petitioner] out of taking the stand." The court responded, "All right, You can make the decision, whatever you want to do. We'll take a 10-minute recess now." Following the recess, defense counsel rested without calling additional witnesses (Tr. 423-24). The sidebar discussion does not establish that counsel interfered with petitioner's right to testify, It does not show that counsel failed to inform petitioner that he had the right to testify and that the decision to do so ultimately belonged to him. Nor does it show that counsel refused to accept petitioner's decision to testify. See Brown, 124 F.3d at 80, It shows nothing more than counsel's desire to dissuade petitioner from taking the witness stand. Efforts by an attorney to dissuade the defendant from taking the stand are consistent with Strickland. See Teague, 953 F.2d at 1533 ("if counsel believes that it would be unwise for the defendant to testify, counsel may, and indeed should, advise the client in the strongest possible terms not to testify") (emphasis added).
To the extent that petitioner is alleging that the untranscribed remarks of defense counsel during the ten-minute recess deprived him of the ability to decide whether to testify, the allegation is denied by counsel In a letter to petitioner, dated April 3, 2000, counsel wrote:
At no time and in no way did I ever deny you [sic] right to take the stand. I do recall you and I having a discussion as to whether you would take the stand and I do recall that I told you that my opinion was that you should not take the stand, I said that because I thought we had a chance of winning the trial [sic] and that if you took the stand you would lose, I thought that you would have made a terrible witness and that you would have been destroyed on cross examination.
You were my client and T gave you my opinion. I did not think you should take the stand, today I still think that you would have made a terrible witness and that you would have been destroyed on cross examination, That being said I never denied you of your right to take the stand (emphasis in original).
Petitioner has failed to show "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694 (discussing the prejudice" component of the two-prong test). Petitioner suggests that if he had taken the witness stand at trial, he would have testified that the People's witnesses had robbed and stabbed him one month earlier and were now "framing" him for the instant crime in order to avoid prosecution (petitioner's memorandum at 1). As defense counsel reasonably concluded that testimony would have worked to petitioner's detriment — by suggesting that petitioner had a motive (i.e., retaliation for the robbery/stabbing) to commit the instant crime.
This claim lacks merit.
C.
Petitioner claims that he was denied the effective assistance of trial counsel because his attorney (i) presented an unreasonable and inadequate defense based on mistaken identity, (it) failed to impeach prosecution witness Armad Grace with the conflicting grand jury and trial testimony of prosecution witnesses Steven Nesbitt and Tyrone Mendez, (iii) failed to impeach prosecution witness Shankar Sundram, M.D., with a certain hospital record, (iv) failed to object when the prosecutor asked certain leading questions and made certain improper summation remarks, and (v) failed to challenge the prosecutor's explanation for not producing Marcus Duff as a witness.
Those claims are procedurally barred from federal habeas review because petitioner failed to raise them in the Appellate Division on direct appeal from his judgement of conviction, and because the trial court's subsequent rejection of those claims rested on an independent and adequate state procedural ground.
By failing to raise these claims on direct appeal from his judgment of conviction, petitioner defaulted on them in the state courts, New York law permits only one application for direct review. 22 N.Y.C.R.R. § 500.10(a). Petitioner may not seek collateral review of those claims pursuant to section 440.10 of the New York Criminal Procedure Law. That provision prohibits courts from entertaining claims, such as these, that were reviewable from the record and, therefore, could have been raised on direct appeal. N.Y. Crim. Proc. Law §§ 440.10(2)(c), 440.30(3Q)(2). Because petitioner's remaining claims are barred by state procedural rules, they are procedurally barred from federal habeas review as well.Coleman v. Thompson, 501 U.S. 722, 750 (1991); Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991).
In addition, petitioner's remaining claims are barred because the trial court, in denying petitioner's motion to vacate judgment, expressly rejected those claims pursuant to sections 440.10(2) and 440.30(2) of the New York Criminal Procedural Law. As the court ruled, "Defendant's remaining claims of ineffective assistance all concern matters of record, which either were or should have been raised and determined on appeal," County Court Order, entered Sept. 27, 2001, at 2 (citing C.P.L. §§ 440.10[2], 440.30[2]).
A federal court will "not consider an issue of federal law on direct review from a judgment of a state court if that judgment rests on a state-law ground that is both `independent' of the merits of the federal claim and an `adequate' basis for the court's decision." Harris v. Rec'd, 489 U.S. 255, 260 (1989); accord Coleman, 501 U.S. at 729-32, The "adequate and independent state ground" doctrine applies to state court decisions dismissing federal claims because of violations of state procedural rules. Harris, 489 U.S. at 260-61, So long as the state court's opinion contains a "plain statement" that the decision was based upon the appropriate state-law rule, the petitioner's claim is procedurally barred in a federal habeas corpus proceeding. Id. at 261 11, 7.
The "adequate and independent state ground" doctrine applies in this case, A state court decision that rejects claims pursuant to sections 440.10(2) and 44030(2) of the New York Criminal Procedural Law is based upon an adequate and independent state ground. See Arce v. Smith, 889 F.2d 1271, 1272-74 (2d Cir. 1989) (holding that the petitioner's failure to bring claims on direct appeal constituted an adequate ground for procedural bar of habeas review.
The trial court in this case plainly stated that it was relying on those procedural rules when it rejected petitioner's remaining ineffective assistance claims.
Like all procedurally-barred claims, petitioner's five remaining claims may be reviewed on the merits only if petitioner can show cause for his default and prejudice, or if he can demonstrate that this Court's refusal to consider his claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750, Petitioner makes no such showing. First, he has not alleged and reason for failing to raise those claims on direct appeal Other than the likely and reasonable judgment of his appellate attorney that such claims were meritless and not worth pursuing, there is no record of any reason for petitioner's default, or that a fundamental miscarriage of justice will result if the Court rejects his claims on procedural grounds.
These claims are lacking in merit on grounds of both default and lack of any reasonable support in fact or law.
XIV. 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.