Opinion
OO-CV-4171 (JBW), 03-MISC-0066 (JBW)
July 22, 2003
MEMORANDUM ORDER JUDGMENT
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
Christopher Willis beat his two year old son Datwan Murphy over an eight week period throughout April and May 1993. Sometime in this period one of Willis' blows created a tear in the boy's intestinal lining, causing feces to spill from the boy's intestine into his blood. Peritonitis resulted leading to his death in June 1993. After the child slipped into unconsciousness Willis repeatedly prevented his live-in girlfriend Wanda Brown from taking the boy to the hospital. He wanted to remove contraband material from the apartment before the arrival of the police. This contraband included more than 7,200 vials of crack cocaine and five loaded and operable weapons, all of which Willis transferred to a black Plymouth Laser registered in Brown's name before fleeing in that car.
Willis was arrested the next day after police traced his location to a public telephone from which a phone call was placed to Datwan Murray's mother. Brown's car was discovered parked around the corner. The car was towed to the precinct and searched pursuant to Brown's consent as the registered owner. The search led to the recovery of the narcotics and guns. Trial transcript ("Tr. trans.") at 85. Thereafter petitioner made several incriminatory statements to the police.
Willis was indicted under Kings County Indictment 6546/93 for homicide (N.Y. Penal Law §§ 125.25[1], [2] and [4] and § 125.20 [4]) and for the possession of narcotics and five loaded and operable weapons (N.Y. Penal Law §§ 220.09[1], 265.02[4]). He moved to suppress the narcotics and weapons that the police found in the car and his incriminatory statements to the police. He did not challenge the proceeds of the police search of the apartment which netted additional contraband. Tr. trans. at 94.
At the suppression hearing, the trial court ruled that the narcotics and weapons recovered from Ms. Brown's car were found and seized lawfully. Willis' incriminatory statements were held to have been made voluntarily.
Willis next moved to dismiss the indictment on the ground that the evidence was legally insufficient to support the charges. He also moved to sever the narcotics and weapons possession counts of the indictment form the homicide counts. Tr. trans., 192-193; 198-99. The trial court denied the motion to dismiss. It also denied the motion to sever the homicide charge. Tr. trans. at 193.
At trial, the defense strategically chose not to offer a defense as to the possession of guns and narcotics. Tr. trans. 485-488. The People introduced three separate videotaped and written statements in which Willis incriminated himself by admitting these charges. Wanda Brown testified for the Prosecution.
Charges were submitted to the jury of murder in the second degree and manslaughter in the first degree in the alternative, as well as counts of criminal possession of a controlled substance in the first and third degrees, and multiple counts of criminal possession of a weapon in the second and third degrees. The jury found Willis guilty of murder in the second degree, criminal possession of a controlled substance in the first degree, and five counts of criminal possession of a weapon in the second degree. Tr. trans., 562-567.
In February 1995 the trial court sentenced petitioner to a term of 25 years to life for the murder conviction, and 25 years to life for the possession of a controlled substance to be served consecutively. He was sentenced to five to fifteen years for each of the five criminal possession of a weapon convictions, each to run concurrently with the two consecutive 25 year terms.
In an appeal to the New York State Supreme Court, Appellate Division, Second Judicial Department, he raised the following claims:
1. The police violated petitioner's Fourth Amendment right to be free from unreasonable searches and seizures;
2. The Court's refusal to sever the drug and gun counts from the homicide counts deprived the defendant of his due process rights under the Fourteenth Amendment; and
3. The Court denied petitioner his right to a fair jury trial by refusing to submit criminally negligent homicide as a lesser included offense.
Petitioner submitted a pro se supplemental brief adding ten more points.
The judgement was affirmed. People v. Willis, 240 A.D.2d 443, 658 N.Y.S.2d 1023 (N.Y.App.Div.2d Dep't 1997). Petitioner then applied for leave to appeal to the New York Court of Appeals. This was denied on September 24, 1997. People v. Willis, 90 N.Y.2d 944, 664 N.Y.S.2d 315 (1997). In February 1998, Willis moved in the Appellate Division for a writ of error coram nobis, claiming that his assigned appellate counsel had furnished ineffective representation by failing to assert a claim of ineffective assistance of trial counsel on direct appeal. Willis alleged that state trial counsel should have had the jury decide whether the seizure of the contraband from the car was legal, and whether Willis's statements were voluntary; he argued that state appellate counsel was ineffective because he did not fault state trial counsel on these grounds. The motion was denied on October 5, 1998 by the Appellate Division. People v. Willis, 254 A.D.2d 315, 678 N.Y.S.2d 288 (N.Y. A.D.2d Dep't 1998).
Willis then filed a petition for a writ of habeas corpus on July 17, 2000 in the United States District Court for the Eastern District of New York. On November 3, 1998 Willis moved to stay consideration of his petition in order to give him an opportunity to exhaust state remedies on the claims he sought to raise, By order dated November 16, 1998, the court dismissed the petition without prejudice. The court granted Willis permission to file a further petition after removal of the unexhausted claims or their exhaustion at the state level.
In an application dated January 21, 1999, Willis moved pursuant to N.Y. Crim. Proc. Law § 440.10 to vacate of the judgment of the Supreme Court of the State of New York convicting him of second degree murder, first degree possession of narcotics and second degree weapons possession. Willis asserted claims relating to the sufficiency of the evidence before the grand jury and the propriety of the instructions given to the grand jury; he also claimed that the grand jury received perjured testimony. Willis then challenged the constitutional adequacy of trial counsel's representation, reiterating arguments made in his coram nobis petition.
On May 4, 1999 the state trial court denied Willis' motion in a written decision. It rejected all of Willis' claims on procedural grounds, adding that "[i]n any event . . . defendant was not denied the effective assistance of counsel." Willis sought a certificate granting leave to appeal to the Appellate Division. On December 22, 1999 his appeal was denied. Willis then applied to the New York Court of Appeals for a certificate granting leave to appeal. On April 17, 2000, Chief Judge Justice of the New York Court of Appeals dismissed this application because the order from which Willis sought to appeal was not an appealable order. People v. Willis, 94 N.Y.2d 954, 710 N.Y.S.2d 11 (N.Y. 2000) (Kaye, J.).
By a new petition dated July 12, 2000 and amended January 23, 2001, Willis seeks a writ of habeas corpus. This can be dated nunc pro tunc to the original petition dated July 17, 2000. No objection on timeliness is made. He advances the following claims:
1. The search of the Plymouth Laser violated petitioner's Fourth Amendment rights;
2. The Court's refusal to sever the drug and gun counts from the homicide counts resulted in the admission of prejudicial evidence suggesting that petitioner was involved in violent, large scale drug trafficking operations;
3. The court denied the petitioner due process by refusing to submit criminally negligent homicide as a lesser included offense of reckless murder despite evidence that petitioner did not perceive the possibility that his actions would lead to the death of his son;
4. Petitioner's right to effective assistance of counsel was violated when appellate counsel failed to adequately brief the issue of the lesser included offense and ineffective assistance of trial counsel; and
5. Petitioner was deprived of effective assistance of counsel and due process of law when his counsel failed to succeed in obtaining a hearing for his post conviction motions.
As amended the petition adds four more claims, all nominally asserting the, violation of petitioner's due process rights, including:
1. That Ms. Wanda Brown perjured herself on the stand and therefore ought to have been charged with perjury;
2. That the trial court's refusal to give the jury the charge of criminally negligent homicide resulted in a denial of due process;
3. That the court failed to give an interested witness charge with regards to Ms. Brown; and
4. That petitioner was not permitted or allowed to testify at his own trial.
II. Law
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, 412-43 (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. "[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). 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. Claims
1. Unreasonable Search and Seizure of the Petitioner's Automobile
This court is unable to provide habeas relief for petitioner's Fourth Amendment claim. As the United States Supreme Court held in Stone v. Powell, "where the State . . . has provided an opportunity for fill and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained through an unconstitutional search and seizure was introduced at his trial." 428 U.S. 465, 466 (1976). In Gates v. Henderson, the United States Court of Appeals for the Second Circuit formulated the appropriate test for determining whether the state has provide a "an opportunity for full and fair litigation of a Fourth Amendment claim" put forth by a state prisoner 568 F.2d 83 (2d Cir. 1977), cert denied, 434 U.S. 1038 (1978). In Gates, the Second Circuit held that to fulfill the requirements of Stone v. Powell, federal courts should undertake review of Fourth Amendment claims in habeas corpus petitions only in instances where either (1) the state has provided no corrective procedures at all to redress the alleged Fourth Amendment violations; or (2) the state has provided a corrective mechanism, but the defendant was precluded form using that mechanism because of an unconscionable breakdown in the underlying process. Id. at 480; see also Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992).
An unconscionable breakdown in the process is said to have occurred only when the petitioner has proved that "no state court . . . conducted a reasoned method of inquiry into relevant questions of fact and law' or any inquiry at all into the Fourth Amendment claim." Shaw v. Scully, 654 F. Supp. 859-64 (S.D.N.Y 1987).
In the instant case, petitioner did make use of the state's corrective measures, receiving a full hearing on his motion to suppress evidence. (Tr. trans., 4-193) Petitioner does not allege that this hearing did not meet the "reasoned method of inquiry" standard, and thus his claim is not cognizable by this court. In any event there is no merit to the claim.
2. Improper Joinder of Weapons and Narcotics Counts to the Homicide Charge
Petitioner claims that the improper joinder of his weapons and narcotics charges to his homicide charge constituted reversible error through the prejudice it cast upon petitioner's character. An error involving misjoinder "affects substantial rights" and requires retrial only if the misjoinder results in actual prejudice because it "had substantial and injurious effect or influence in determining the jury's verdict." U.S. v. Lane, 474 U.S. 438, 439 (1986), citing Kotteakos v. United States, 328 U.S. 750, 776 (1946). Only where the joinder of offenses actually renders the state trial fundamentally unfair does that joinder rise to the level of a due process violation. Id. at 446 n. 8.
The Appellate Division adjudicated Willis's claim on its merits and found that the counts were properly joined under section 200.20(2)(b) of the New York Criminal Evidence Law. It mandates the joint trial of separate crimes where proof of one crime would be material and admissible as evidence in chief upon a trial of the other crime. People v. Willis, 658 N.Y.S.2d 1023 (Mem) (N.Y. 1997); People v. Cobo, 245 A.D.2d 72, 73 (N.Y.App.Div.2d Dep't 1997). The Appellate Division affirmed the lower court's determination that the "evidence relating to possession of the narcotics and weapons was material and admissible to establish the defendant's consciousness of guilt in relation to his actions which contributed to the death of his infant son." Id. Petitioner counters that the state of mind issue would have been equally addressed through a fact denuded explanation of his actions. The prosecution could have stated, and the petitioner would have stipulated, that the petitioner had loaded his car with valuables, including contraband, before leaving the scene. Petitioner's Memorandum of Law, 13. Yet the prosecution and the court reasonably concluded that the specific details of the contraband and other circumstances relating to the killing of the child were necessary for a full understanding of the crimes. This conclusion was sound.
Petitioner incorrectly assumes that the purpose of the trial court's joining of the counts was only to allow the prosecution to show why petitioner delayed treatment. There exists a valid governmental interest in the convenience of trying together different crimes against the same person as well as the expectation that a jury will follow instructions in limiting the evidence presented to its proper function. Spencer v. Texas, 385 U.S. 554, 562 (1967). It does not follow that if petitioner's malfeasance can be averred through another source then joinder is not permitted.
Whatever arguable prejudice petitioner suffered from the inclusion of the weapons and narcotics evidence, it did not arise to a level tainting the proceeding. Petitioner has not demonstrated how joinder actually prejudiced his trial, especially in light of the overwhelming evidence of guilt of all crimes charged. See Brecht v. Abrahamson, 507 U.S. 619 (1993).
3. Improper Refusal of the Trial Court to Submit a Lesser Included Charge to the Jury
Petitioner's claim for relief on due process grounds is procedurally barred. The case law on whether there exists a due process right to receive a charge on a lesser included offense is inconclusive, and not sufficient to establish such a right outside a capital setting. Beck v. Alabama, 447 U.S. 625 (1980); Gardner v. Florida, 430 U.S. 349, 357-58 (1977); Bagby v. Sowders, 894 F.2d 792, 797 (6th Cir. 1989) (en banc), cert. denied, 496 U.S. 929 (1990); Tata v. Carver 917 F.2d 670 (1st Cir. 1990); Trujillo v. Sullivan, 815 F.2d 597 (10th Cir. 1987). Jones v. Hoffman held that to create a due process right to receive a lesser included instruction in a habeas setting would be tantamount to creating a new rule under Teague. Jones v. Hoffman 86 F.3d 46, 48 (2d Cir. 1996); See Teague v. Lane, 489 U.S. 288 (1989). In any case the claim is meritless.
Assuming petitioner had a due process right to the charge of a lesser included offense, this court must apply a two prong test to determine whether to grant a writ of habeas corpus based on the trial court's failure to include the charge. People v. Van Norstrand, 65 N.Y.2d 898 (N.Y. 1997); People v. Glover, 57 N.Y.2d 61 (N.Y. 1982).
First, in order to be a lesser included offense it must be theoretically impossible to commit the greater offense without committing the lesser through the same conduct. In this case comparative examination of the two statutes demonstrates that criminally negligent homicide is a lesser included offense within second degree murder. See People v. Gross, 300 A.D.2d 1102, 751 N.Y.S.2d 814 (Mem) Slip Op. 09927 (N.Y. A.D. 4th Dep't 2002); See also People v. Cole, ___ N.Y.S.2d ___, 2003 WL 21283843, Slip Op. 14729 (N.Y.App.Div.3d Dep't 2003). Though urging the contrary, respondent demonstrates the accuracy of this conclusion in their own brief, writing that in causing a death, "criminally negligent homicide requires proof that the defendant failed to perceive a substantial and unjustifiable risk of death, while murder in the second degree requires proof that the defendant was aware of and consciously disregard [sic] a substantial and unjustifiable risk of death or serious physical injury." Since the distinction between the statutes involves perception alone, rather than any difference in action stemming from such perception, there is a difference in the culpable mental states rather than conduct. N.Y. Crim. Proc. Law § 1.20 (37)
The second prong is whether a reasonable view of the evidence supports a finding that the defendant committed the lesser offense but not the greater. While petitioner urges this court to believe that he did not have the greater required state of mind of depraved indifference, he points to no evidence on the record to support his contention. A jury found that there was sufficient evidence to convict on the charge of murder in the second degree. Nothing petitioner states serves to undermine confidence in that jury's finding or to prove that a fundamental miscarriage of justice occurred. There is no reason to overturn the determination reached by the Appellate Division that the petitioner was properly charged. See People v. Willis, 757 N.Y.S.2d 464, (N.Y.App.Div.2d Dep't 2003). This claim has no merit.
4. Ineffective Assistance of Counsel
As petitioner notes, the Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the assistance of counsel for his defense." U.S. Const. amend. VI. That right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added).
Ineffective assistance of trial counsel objections are subject to the standards set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (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 United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable." Id. at 690-91. Conceptualizing trial counsel's actions as strategic choices is not, as the petitioner claims, a mere label to dispose of claims expediently, but central to the conception of "an objective standard of reasonableness" to which counsel is held. Strickland directs this court to engage in a deferential analysis of counsel's conduct and eliminate the distorting effects of hindsight through evaluating the conduct from counsel's perspective at the time. Id. at 669. This direction is particularly applicable to the case at hand. Trial counsel chose early on to forgo opportunities to challenge certain pieces of evidence in order to gain certain advantages in how the evidence of the homicide was presented to the jury. At the outset counsel properly attempted to suppress the drug and weapons evidence. Tr. trans. at 191. After failing to do so, he found that he could obtain some benefit from conceding what must have appeared to be unwinnable contentions in order to gain credibility for the petitioner. Tr. trans. at 490. Counsel sought to do what he could to attack the only remaining charge that was not subject to strong objective proof already on the record. He properly concluded that the choice to concede these charges would bolster the petitioner's credibility and that it would support the contention that the petitioner acted negligently, rather than recklessly.
Petitioners's contention, that trial counsel ought to have presented to the jury the argument that the physical evidence of the narcotics and weapons was improperly seized, belies his misunderstanding of the respective roles of the judge and jury in New York state criminal proceedings. A judge's decision that evidence was properly obtained by the police is not subject to a jury finding. Petitioner's complaints about his trial counsel are meritless.
5. Failure to secure a hearing on petitioner's post conviction motion constituted ineffective assistance of counsel.
This claim is meritless because such a hearing is not required. N.Y. Crim. Proc. Law § 440.34. The failure of counsel to obtain a hearing cannot be said to be in error. This was a matter within the trial court's discretion. Since the court presided over the recent trial it needed no oral argument.
IV. Claims Added in the Amended Brief
1. Witness Perjury
Petitioner alleges Ms. Wanda Brown perjured herself when she testified in court that she had lied earlier to officers investigating the case, and therefore she ought to have been charged. This does not present a claim cognizable by this court. There is no power to vacate a conviction on the basis that others should also have been charged.
A conviction based on perjured testimony is analyzed under the Due Process Clause of the Fourteenth Amendment. Napue v. Illinois, 360 U.S. 264, 269 (1959). Under this standard, a conviction must be set aside if "the prosecution knew, or should have known, of the perjury, " and "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." United States v. Agurs, 427 U.S. 97, 103 (1976). The court of appeals for the Second Circuit has thus far declined to "draw the contours of the phrase "should have known."' Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003). The court of appeals has decreed that, because the Supreme Court has not clearly established that habeas relief is available in the complete absence of prosecutorial knowledge of perjury, AEDPA prevents granting of the writ on such grounds. Id. at 345 n. 2 (after AEDPA, habeas petitioners can no longer rely on Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1998), in which habeas relief was granted in the absence of prosecutorial knowledge of perjury). Petitioner neither alleges, nor provides evidence to demonstrate that the district attorney had any knowledge of Brown's purported perjury.
The jury had ample basis for assessing the prosecution witness's testimony. It properly found her credible in view of all the evidence. This claim has no merit.
2. Failure of the Trial Court to Give the Jury the Charge of Criminally Negligent Homicide.
See III (3), supra.
3. Failure of the Court to Give an Interested Witness Charge
Petitioner claims he was denied his due process fights when the trial court failed to charge the jury that the prosecution witness, Wanda Brown, was an interested witness (i.e., that testimony "should be scrutinized carefully and a determination made as to whether any benefit he received affected the truthfulness of that testimony.") People v. Jackson, 74 N.Y.2d 787, 543 N.E.2d 738, (N.Y. 1989). Petitioner argues that as both the apartment and car where the drugs and weapons were found were registered in the name of Ms. Brown, she therefore was in constructive possession of said contraband when it was recovered by the police. This claim is unpreserved for appeal as it has not been previously litigated. Further, Brown had received full immunity to prosecution by the time the case was litigated and therefore had no stake in its outcome. See also People v. Inniss, 83 N.Y.2d 653, 634 N.E.2d 961, 612 (N.Y. 1994). The claim has no merit. It was obvious to the jury that Ms. Brown was at least peripherally involved through the use of her car and apartment. No charge was required. This claim lacks merit.
4. Petitioner was not Permitted to Testify at his Trial.
Petitioner claims that his trial attorney's strong advice, given in light of an adverse Sandoval ruling, that he not testify constituted a violation of his right to due process. Petitioner was free to insist on his right to testify. Neither counsel nor the court prevented petitioner from doing so. It was the choice of the petitioner to heed the advice of counsel. To the extent that petitioner objects to the Sandoval ruling, his claim is not cognizable on habeas review since petitioner did not testify at trial. See Luce v. United States, 469 U.S. 38, 43 (1984) ("to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify"); Grace v. Artuz, No. 00-CV-1441, 2003 U.S. Dist. LEXIS 6969, at *26 (E.D.N.Y. Apr. 22, 2003) ("petitioner's claim as to the impropriety of the Sandoval ruling does not raise a constitutional issue cognizable on habeas review"). Given the circumstances his counsel's advice was sound. There is no merit to the claim.
5. Ineffective Assistance of Trial Counsel
Petitioner reiterates his claim of trial counsel ineffectiveness arising out of counsel's strategy to not contest the drug or weapon possession counts and to deride petitioner's character in order to establish credibility. This claim has already been discussed. See III (4), supra. Counsel was as effective as could be expected given the strong evidence of defendants s criminal depravity.
IV. 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.
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.
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).
SO ORDERED.