Opinion
No. 98 Civ. 5384 (LTS) (THK).
December 12, 2000.
REPORT AND RECOMMENDATION TO THE HONORABLE LAURA TAYLOR SWAIN
This habeas corpus petition was referred to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b)(1)(B) and (C) and Local Civil Rule 72.1(d) of the Southern District of New York. Petitioner, a New York State prisoner, seeks habeas relief pursuant to 28 U.S.C. § 2254, claiming that his conviction resulted from the deprivation of his Sixth Amendment right to the effective assistance of appellate counsel. See Petition. Respondent has moved to dismiss the action. For the reasons set forth below, I respectfully recommend that the action be dismissed with prejudice.
BACKGROUND
On June 20-22, 1994, petitioner was tried by a jury in New York Supreme Court, New York County (McLaughlin, J.), for attempted murder in the second degree (New York Penal Law ["P.L."] §§ 110.00 and 125.25), two counts of burglary in the first degree (P.L. § 140.30), assault in the first degree (P.L. § 120.10[1]), and criminal possession of a weapon in the third degree (P.L. § 265.02[1]). See Respondent's Appellate Brief, at 1.
The evidence at trial revealed that in the Spring of 1993, petitioner assaulted Stephanie Pope, with whom he was involved in a long-term relationship, and was incarcerated for this assault. (Trial Transcript ["Tr."] at 50-53, 205.) After he was released from Riker's Island, on or about June 10, 1993, petitioner made several inquiries regarding Pope's whereabouts. (Tr. at 53-61, 175-186.) Pope testified that petitioner visited her several times at her father's home, insisting that she "come home" with him, or at least give him her new address. (Tr. at 58-59.) She refused these requests but allowed petitioner to take the couple's two-year-old son Tyreed for a few hours. (Tr. at 56-59, 180.)
On June 11, 1993, petitioner confronted Pope at her father's apartment. (Tr. at 62.) Pope testified that when she again refused to leave with petitioner, he produced a knife and stabbed repeatedly at her chest, head, and an arm she raised to ward off his blows, and then left the scene with Tyreed. (Tr. at 53, 62, 73-75.) Pope was subsequently admitted to and treated at Harlem Hospital for multiple stab wounds to her head, ear, chest, and arm. (Tr. at 76-79.) Her injuries resulted in continuing pain, scars and loss of motion in her left arm. (Tr. at 77-80, 85.)
Pope testified that petitioner visited her in the hospital on June 12 to apologize for the previous night's attack. (Tr. at 80-82.) When petitioner left to run an errand, Pope alerted Police Officer Christopher Schmidt, who was guarding a prisoner-patient on the same hall, and petitioner was arrested upon returning to the hospital floor. (Tr. at 34, 38, 82-83.)
Petitioner testified in his own defense, and offered a widely differing account of what transpired on June 11. Asserting a justification defense, petitioner testified that he had struck Pope not with a knife, but with a fountain pen. (Tr. at 190-191.) He further testified that he had done so only because Pope, high on PCP and jealous of his relationship with another woman, had threatened him by reaching into her pocketbook for a gun. (Tr. at 187-190.) While acknowledging that he had repeatedly visited Pope, he explained that the purpose of these visits had not been to renew their relationship, but to visit Tyreed and to reclaim a wallet and a gun he had left in the apartment they had shared prior to his incarceration on Riker's Island. (Tr. at 177, 180, 181-182, 192.) Petitioner further explained that he visited Pope in the hospital in another attempt to reclaim his wallet and gun. (Tr. at 193-194.)
The defense also presented the testimony of Barbara Thompson, petitioner's sister, Joshua J. Wagshall, who was incarcerated with petitioner on Riker's Island, and Dr. Kenneth Kleiner, the defense's expert witness. Thompson testified that she had known Pope for approximately fifteen years, and encountered Pope at Thompson's mother's home on June 11, prior to the incident between Pope and petitioner. (Tr. at 148, 152.) Thompson informed Pope that petitioner was no longer incarcerated and wanted his wallet back. (Tr. at 152.) According to Thompson, Pope replied that petitioner could find or contact her at her father's apartment. (Tr. at 152.) Thompson corroborated petitioner's testimony that Pope had access to a gun, by recounting a conversation in which Pope had refused Thompson's mother's request that Pope return petitioner's gun. (Tr. 152-155.)
Wagshall testified that he first met petitioner while he was detained on Riker's Island. (Tr. at 315-317, 338.) After his release, Wagshall remained in contact with petitioner, who was still confined on Riker's pending trial. (Tr. at 320-321.) Wagshall testified that he arranged three-way conference calls for petitioner so that petitioner could extend his telephone privileges at Riker's. (Tr. at 321-324, 343, 345-346.) Wagshall stated that during calls connecting petitioner with Pope, petitioner had frequently asked Pope why she had threatened him with a gun, and on all but one occasion, Pope had replied that petitioner knew she would not shoot him anyway. (Tr. at 321-324, 355-357.)
On cross-examination, the prosecutor attempted to impeach Wagshall by questioning him about representations he had made regarding his educational background, and about whether he had tried to use Pope's father to influence Pope to drop the charges against petitioner. The prosecutor also engaged in several lines of questioning that prompted defense counsel to make two motions for a mistrial. The prosecutor first inquired about Wagshall's arrest for making false statements to a New York postal inspector. (Tr. at 329.) Wagshall testified that this case had been dismissed with prejudice. (Tr. at 330.) When defense counsel objected to this questioning, the court instructed the prosecutor that she could ask about the underlying facts if she knew them, but could not ask about an arrest that did not result in a conviction. (Tr. 330.) After the prosecutor stated that she did not know the underlying facts of the arrest, the court struck Wagshall's testimony about the arrest from the record and instructed the jury that any arrest did not "count." (Tr. at 329-336.) The court denied the defense's motion for a mistrial. (Tr. at 333-336.)
The prosecutor further cross-examined Wagshall about whether petitioner had threatened or bribed him for his testimony. (Tr. at 364.) Defense counsel objected, arguing that this statement, made in open court, warranted a mistrial because it was unduly prejudicial to petitioner. (Tr. at 364-366.) The prosecutor responded that she had merely asked a question, not made an accusation, and furthermore, that she had a good faith basis for the question. (Tr. at 364.) She explained, "[H]e's been threatening everyone else in connection with this case. So it's certainly possible that he may also have threatened this witness and that could be the reason he's coming here to testify." (Tr. at 366-367.) The court sustained defense counsel's objection, but denied his application for a mistrial. (Tr. at 367.)
Pope testified that petitioner often called her after his arrest, and always threatened her. (Tr. at 86-87.)
Dr. Kleiner testified that Pope's medical chart indicated that none of her wounds were life-threatening. (Tr. at 293.) He further testified that the chart revealed that the wounds were superficial, and did not result in any significant blood loss or other complications. (Tr. at 294.) Although the chart did not indicate the depth of Pope's wounds, Dr. Kleiner reached this conclusion based on the absence of any notation of further complications or injury below the skin, and the need for only one layer of suture material. (Tr. at 294-295.) On cross-examination, Dr. Kleiner conceded that he had studied only portions of Pope's medical chart, and that he had missed any reference to an ear wound. (Tr. 296-297.) Kleiner also conceded that a victim with a superficial wound generally would not require admission to the hospital, as had been the case with Pope, and that if the stab wound to the chest had been deeper, it could have cut the intercostal muscles between the ribs, as well as the right lung. (Tr. at 300-302.) Although the medical chart indicated that Pope needed physical therapy because of impairment to her shoulder mobility and grip strength, Dr. Kleiner questioned these findings, suggesting that Pope's residual pain might result in misperceptions of impairment. (Tr. at 305-311.)
On June 22, 1994, the jury acquitted petitioner of attempted murder and burglary, and convicted him of assault and criminal possession of a weapon. (Tr. 608-609.) As a second felony offender, petitioner was sentenced to indeterminate concurrent sentences of 7 1/2 to 15 years for assault, and 2 to 4 years for criminal possession of a weapon. See Respondent's Memorandum of Law in Opposition to Petitioner's Writ of Habeas Corpus ("Resp. Mem."), at 5.
Petitioner, represented by Michael Pinard of the Office of Appellate Defender, appealed his conviction to the Appellate Division, First Department, asserting four claims. See Brief for Defendant-Appellant, attached as Exhibit A to Nicola N. Grey Affidavit in Opposition to Petitioner's Writ of Habeas Corpus. First, he argued that in responding to a jury question during deliberations, the trial court impermissibly amended the indictment by allowing the jury to consider whether a fountain pen could be a "dangerous instrument," when the indictment and the prosecutor's theory of the case specifically alleged use of a knife. See id. Second, he claimed that the trial court erred in its Sandoval ruling permitting petitioner to be impeached with the underlying facts of a prior conviction for an earlier assault on Pope, because the court failed to consider either the prejudicial similarity of this evidence to the charged conduct, or the possibility of a less prejudicial alternative. See id. The third claim alleged that the trial court erred in its Molineux ruling, permitting evidence that petitioner abandoned his son Tyreed after removing him from Pope's home. See id. Finally, appellate counsel argued that petitioner was unduly prejudiced and deprived of a fair trial because the prosecutor, on cross-examination of a key defense witness, Wagshall, elicited testimony regarding a dismissed criminal charge and an arrest not resulting in a conviction, and questioned the witness, without any good faith basis, about bribes or threats by petitioner in exchange for the witness's testimony. See id.
In a letter dated November 6, 1996, the date petitioner's appeal was filed, Mr. Pinard explained to petitioner why he did not pursue two additional arguments petitioner had proposed. This letter referenced a prior conversation between Pinard and petitioner as well as a letter petitioner had written on October 29 of the same year. See Letter from Michael Pinard, dated November 6, 1996 ("Pinard Letter"), attached as Exhibit N to Petition for Writ of Coram Nobis, attached as Exhibit C to Petition. The letter concluded that Pinard believed the four grounds presented on appeal to be petitioner's strongest. See id.
The Appellate Division unanimously affirmed petitioner's conviction on April 17, 1997. See People v. Angel, 656 N.Y.S.2d 256 (1st Dep't 1997). The Appellate Division held that there was no constructive amendment of the indictment because "[a]ny discrepancy between the indictment and the proof at trial was created by defendant's own version of the incident." Id. at 256-257. The court rejected the Sandoval/Molineux challenges on the grounds that any prejudice resulting from the introduction of evidence on the previous assault was outweighed by its probative value with respect to petitioner's motive and intent, and in explaining the nature of his relationship with the victim. Id. at 257. Finally, the court held that any potential for undue prejudice resulting from the prosecutor's questioning of Wagshall on his arrests, and whether he was bribed or threatened by petitioner, was cured by the trial court's instruction that the jury should disregard the questions and any responsive testimony. Id. at 257.
Still represented by Pinard, petitioner applied for leave to appeal to the New York State Court of Appeals, arguing that the case presented novel questions of law that merited review by the court. Specifically, Pinard argued:
This case presents an opportunity for the Court to address a novel question arising out of this Court's decision in People v. Spann, 56 N.Y.2d 469, 452 N.Y.S.2d 869 (1982) . . . whether the trial court, after presentation of the evidence, can constructively amend an indictment to include the theory presented by the defendant, when the defendant raises such a theory in the context of a justification defense, which the People have the burden of disproving beyond a reasonable doubt.
See Leave Application, attached as Exhibit B to Petition. Leave to appeal was denied on October 1, 1997. See People v. Angel, 90 N.Y.2d 1009 (1997).
On January 6, 1998, appearing pro se, petitioner applied to the Appellate Division, First Department, for a writ of error coram nobis, claiming ineffective assistance of appellate counsel. See Petition for Writ of Coram Nobis. Petitioner argued that appellate counsel had been ineffective because he did not argue on appeal (1) that the prosecutor improperly introduced evidence of a prior statement of petitioner's, as to which he had not been given notice, (2) that the prosecutor conducted petitioner's cross-examination in bad faith and with the purpose of harassing him, and (3) that there was insufficient evidence to support a conviction of first degree assault, with respect to the elements of intent, seriousness of physical injury, and dangerous instrumentality. The Appellate Division denied petitioner's application on June 11, 1998. See People v. Angel, 675 N.Y.S.2d 480 (1st Dep't 1998).
In his present petition for habeas relief, petitioner argues that he received ineffective assistance from his appellate counsel because counsel did not raise (1) "prosecutorial improprieties," (2) ineffective assistance of trial counsel, and (3) insufficiency of the evidence of first degree assault. Petitioner contends that "appellate counsel did not raise one solidly meritorious or nonfrivolous issue that would have warranted reversal of the judgment of conviction upon review." See Petition.
DISCUSSION
Respondent concedes that petitioner presented his claim of ineffective assistance of appellate counsel to the highest state court and that petitioner has therefore exhausted his state remedies. See Resp. Mem. at 6-7. Therefore, the only issue before the Court is whether petitioner's substantive claim merits habeas relief.
I. Legal Standard Governing Claim of Ineffective Assistance of Appellate Counsel
In order to prevail on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy a two-part test. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). First, he must establish that his attorney's performance was so deficient that it "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. In applying this first prong of the Strickland test, the Court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Id. at 689, 104 S. Ct. at 2065 (citation and internal quotation marks omitted).
To satisfy the second part of the Strickland test, a habeas petitioner must demonstrate 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, 104 S. Ct. at 2068; Mayo, 13 F.3d at 533 (applying same standard of review to claims of ineffective assistance of appellate counsel). "Reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome" of the trial. Id. "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim." Strickland, 466 U.S. at 700, 104 S. Ct. 2071.
Although the Strickland standard was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the test also applies to claims directed at appellate counsel. See Mayo, 13 F.3d at 533; Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied, 508 U.S. 912, 113 S. Ct. 2347 (1993); Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990). "In attempting to demonstrate that appellate counsel's failure to raise a state claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made." Mayo, 13 F.3d at 533. Appellate attorneys are "entitled to exercise their professional judgment to focus on one or two key issues while 'winnowing out weaker arguments.'" Benn v. Stinson, 917 F. Supp. 202, 206 (S.D.N.Y. 1995) (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3313 (1983)); see also Evitts v. Lucey, 105 S. Ct. 830, 835, 469 U.S. 387, 394 (1985); Cunningham v. Henderson, 725 F.2d 32, 35 (1984). Moreover, a reviewing court should not second-guess an attorney's reasonable professional judgment as to the most promising issues on appeal, see Jones, 463 U.S. at 754, 103 S. Ct. at 3314; Cunningham, 725 F.2d at 36, even though the appeal was unsuccessful. See Mayo, 13 F.3d at 533 ("a reviewing court must judge [counsel's] conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' . . . and may not use hindsight to second-guess his strategy choices") (citations omitted). A petitioner may establish constitutionally inadequate performance by appellate counsel only by showing that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. In addition, a habeas petitioner must demonstrate that appellate counsel's error or omission so prejudiced his chances on appeal that, absent counsel's deficient performance, there is a reasonable probability that his appeal would have been successful. See id., at 534.
In the instant case, petitioner's appellate counsel wrote a thorough and well-reasoned fifty-two-page brief in which he raised four significant issues. He also wrote a reply brief, followed by an application for leave to appeal in which he attempted to frame a novel question of New York law in order to persuade the New York Court of Appeals to hear petitioner's appeal. In contrast, the purported deficiencies which petitioner now raises all address insubstantial or clearly unmeritorious claims.
II. Application of the Legal Standard
A. Prosecutorial Improprieties
Petitioner claims that appellate counsel was ineffective in failing to raise "prosecutorial improprieties" on appeal. The Petition fails to set forth any factual basis for this general and conclusory allegation. However, because courts should construe pro se pleadings liberally to state the strongest possible arguments they would support, see Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000); Graham v. Henderson, 89 F.3d 75, 79 (2d Cir. 1996), the Court relies upon petitioner's coram nobis application, attached to the Petition, which specifies three bases for objecting to the prosecutor's conduct: (1) the prosecutor offered into evidence a prior statement of petitioner's, as to which notice had not been provided; (2) the cross-examination of petitioner was conducted in bad faith; and (3) the prosecutor improperly implied through his questions that petitioner was under a court order to refrain from contacting the complaining witness. See Petition for Writ of Coram Nobis.
Appellate counsel was not ineffective for failing to raise any of these issues. Under New York law, reversal of a conviction for prosecutorial misconduct "is properly shunned when the misconduct has not substantially prejudiced a defendant's trial" because "it does not affect the prosecutor directly, but rather imposes upon society the cost of retrying an individual who was fairly convicted." People v. Galloway, 54 N.Y.2d 396, 401 (1981) (quoting United States v. Modica, 663 F.2d 1173, 1184 (2d Cir. 1981)). Accordingly, the inquiry is whether the prosecutorial misconduct deprived the defendant of his right to a fair trial, see People v. Tidwell, 617 N.Y.S.2d 76 (4th Dep't 1994); People v. Simms, 130 A.D.2d 525, 515 N.Y.S.2d 105 (2d Dep't 1987), and reversal is warranted "'only when the conduct has caused such substantial prejudice to the defendant that he has been denied due process of law.'" People v. Hess, 653 N.Y.S.2d 216, 216 (4th Dep't 1996) (citations omitted). In assessing its prejudicial effect, the alleged misconduct is considered in light of the strength of the proof against defendant at the trial in which it arose. See People v. Brosnan, 32 N.Y.2d 254, 262 (1973).
Petitioner contends that the prosecutor improperly asked him whether he said to the arresting officer, after assaulting Pope, "Hey man, I'm sorry. Give me a break. I just got out." (Tr. at 259, 371.) He argues that the prosecutor was required to give him prior notice before using any of his statements, and that the prosecutor had agreed prior to trial not to use this particular statement. The correspondence between petitioner and his appellate counsel reveals that counsel considered petitioner's claim regarding this prior "un-noticed statement," and properly found it meritless because (1) defense counsel had notice of the existence of the statement, (2) the prosecutor had only agreed not to offer this statement on the direct examination of Officer Schmidt and she did not do so, and (3) the statement was permissibly used in the contexts of impeachment and rebuttal. See Pinard Letter. The trial transcript supports appellate counsel's view that the statement was first introduced in cross-examining petitioner, and that the prosecutor recalled the arresting officer in rebuttal only after petitioner denied that he made the statement, adding, "If I would have, the police would have said it yesterday on the witness stand." (Tr. at 259-260.) In light of these facts, the prosecutor's use of the statement was hardly misconduct, much less misconduct that would have warranted reversal of the conviction on appeal. Therefore, counsel's decision not to raise the issue on appeal was a reasonable exercise of professional judgment, and does not constitute ineffective assistance. See Jones, 463 U.S. at 751, 103 S. Ct. at 3314.
Petitioner's second allegation in his coram nobis application, that the prosecutor acted in bad faith, is supported only by his claim that she conducted the cross-examination of petitioner "in a rage of heated passion" and inquired whether petitioner was not welcome to stay at his mother's house because she looked unfavorably on the practice of beating women. See Petition for Writ of Coram Nobis. There is nothing in the record to support petitioner's characterization of the cross-examination as enraged, and petitioner provides no additional argument as to why this questioning was improper. Indeed, his trial counsel did not object to this line of cross-examination, thus leaving any basis for appeal unpreserved. Under these circumstances, appellate counsel exercised reasonable professional judgment in declining to pursue this claim.
The pertinent segment of the cross-examination is as follows:
Q: But your mother wouldn't let you stay with her. Isn't that true?
A: My mother is very funny. Certain things you don't do in my mother's house. My mother is 75-years old. She's very strict, and she's set in her ways.
Q: Like beating on women. [sic] Is that one of the things you're not allowed to do in your mother's house?
A: To avoid the problem, I wouldn't ask my mama to stay at her house. I left my mama's house when I was 15-years old and never been back since. (Tr. at 216.)
In New York, a party's failure to make a contemporaneous objection constitutes a waiver of the objection. See N.Y. Criminal Procedure Law § 470.05(2); People v. Utley, 45 N.Y.2d 908, 910 (1978).
Finally, the prosecutor's inquiry on cross-examination as to whether petitioner stopped calling Pope because a judge ordered him to do so, was stricken from the record as collateral and irrelevant, with the jury instructed to disregard the question. (Tr. at 265-270.) It was within appellate counsel's reasonable exercise of professional judgment to focus on more promising arguments rather than to attempt to show that an unanswered collateral question, as to which there was a curative instruction, resulted in such prejudice so as to undermine the validity of petitioner's conviction.
B. Ineffective Assistance of Trial Counsel
Without specifying any particular errors or citing to the record, petitioner alleges that appellate counsel was ineffective in not arguing that petitioner was afforded ineffective assistance of trial counsel. A habeas petition may be denied "where the allegations are insufficient in law, undisputed, immaterial, vague, conclusory, palpably false or patently frivolous". United States v. Malcolm, 432 F.2d 809, 812 (2d Cir. 1970). See also Maddox v. Lord, 818 F.2d 1058, 1061 (2d Cir. 1987) (court can deny habeas petition when claims are "merely vague, conclusory, or palpably incredible"); Polanco v. United States, Nos. 99 Civ. 5739, 94 Cr. 453 (CSH), 2000 WL 1072303, at *10 (S.D.N.Y. Aug. 3, 2000) ("wholesale and vague accusations are patently insufficient to meet the Strickland standard"); Lamberti v. United States, No. 95 Civ. 1557, 1998 WL 118172 (PNL), at *2 (S.D.N.Y. Mar. 13, 1998) ("vague and conclusory" allegations of counsel's failure to investigate or communicate, which neither specify the alleged failings nor show how different conduct would have changed the result, cannot sustain habeas petition); Matura v. United States, 875 F. Supp. 235, 237-238 (S.D.N.Y. 1995) (rejecting "conclusory" allegation that counsel failed to conduct an adequate investigation, which petitioner argued would have established his innocence).
Despite respondent's concession that petitioner exhausted his state remedies, the claim that appellate counsel was ineffective because he failed to raise ineffectiveness of trial counsel on appeal was not presented to the state courts. Nevertheless, under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court may deny a state prisoner's habeas corpus petition on the merits despite petitioner's failure to exhaust available state remedies, even when the state has not waived its nonexhaustion defense. See 28 U.S.C. § 2254 (b)(2); see also Lurie v. Wittner, 228 F.3d 113, 124 (2d Cir. 2000); Loving v. O'Keefe, 960 F. Supp. 46, 49-50 (S.D.N.Y. 1997); Metts v. Miller, 995 F. Supp. 283, 292, n. 14 (E.D.N.Y. 1997).
In addition, this Court's review of the record reveals that throughout petitioner's trial, trial counsel made articulate and appropriate objections, conducted a thorough cross-examination, and mounted an effective defense, which resulted in acquittals on three of the five counts of the indictment. For example, during Wagshall's cross-examination, defense counsel successfully objected to questioning Wagshall about prior bad acts, as well as petitioner's alleged inducement of his testimony. (Tr. at 329-336, 364, 366-367.) During the prosecution's direct examination of Pope, counsel successfully objected to testimony that an order of protection prohibited petitioner from contacting Pope. (Tr. 65-72.) In cross-examining Pope, counsel elicited that Pope had requested and accepted Christmas presents for her children from petitioner, even while petitioner was allegedly threatening her life, and that Pope had in the past used PCP. (Tr. at 97-100, 102-104, 109.) Counsel offered three witnesses in support of the defense's theory of self-defense, and an expert witness in support of the proposition that Pope's injuries were not life-threatening. Petitioner's conclusory, unsubstantiated assertion that appellate counsel should have challenged trial counsel's effectiveness cannot satisfy either prong of the Strickland standard.
C. Insufficiency of the Evidence
Finally, petitioner claims that his appellate counsel was ineffective because he did not argue that the evidence at trial was insufficient to support a conviction for first degree assault. However, petitioner cannot establish that appellate counsel's choice not to raise this claim satisfies either prong of the Strickland standard.
First, petitioner cannot demonstrate prejudice because he cannot show that had his appellate counsel argued insufficiency of the evidence, this claim would have been successful. See Mayo, 13 F.3d at 534. A New York appellate court reviewing a claim of insufficiency of the evidence would have applied the standard of whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements beyond a reasonable doubt." People v. Contes, 60 N.Y.2d 620, 621 (1983) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979). Under New York law, a person is guilty of first degree assault when, "[w]ith intent to cause serious physical injury to another person, he causes such injury to such person or to a third person by means of a deadly weapon or a dangerous instrumentality." P.L. § 120.10(1). A "dangerous instrument" is one "which, under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or other serious physical injury." P.L. § 10.00(13). "Serious physical injury" is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." P.L. § 10.00(10).
Any argument that there was insufficient evidence to sustain petitioner's conviction for first degree assault would have been meritless. The intent and dangerous instrumentality elements were supported by Pope's testimony that petitioner stabbed her repeatedly with a knife, inflicting numerous stab wounds. A finding of serious physical injury to the victim is supported by (1) Pope's scars, still visible at the trial, over one year later; (2) her testimony that the use of her arm was still limited, that she still had sharp pains in her chest, and that her injuries required sutures, six days of hospitalization and physical therapy; and (3) the defense's expert's testimony that hospitalization generally would not be required in an otherwise healthy patient unless the injuries were serious. Cf. People v. Wade, 590 N.Y.S.2d 245 (2d Dep't 1992) (razor attack where victim required stitches from the ear to the mouth, with scarring still present eight months later, sufficient to sustain first degree assault conviction); People v. Blunt, 574 N.Y.S.2d 812 (2d Dep't 1991) (beating resulting in decreased flexibility, sleeplessness, and prolonged pain to victim's head, back, arm, and ear continuing until the date of trial, over one year later, sufficient to sustain first degree assault conviction); People v. Robles, 569 N.Y.S.2d 704 (1st Dep't 1991) (reducing conviction to second degree assault where there was no evidence of "protracted impairment of health or protracted loss or impairment of the function of any bodily organ, [nor] that [the] injuries were life threatening or caused protracted disfigurement"); People v. Castillo, 604 N.Y.S.2d 220 (2d Dep't 1993) (finding insufficient injury for first degree assault conviction where the only physical effects of assault persisting until time of trial, eight months later, were that "[i]t hurts once in a while when the weather changes").
Moreover, had appeal advanced the argument that the dangerous instrumentality lement was not satisfied, the appellate court would surely have noted that the jury, in convicting petitioner of the possession offense, necessarily rejected petitioner's claim that he inflicted the injuries with a fountain pen rather than a knife. A person is guilty of criminal possession of a weapon in the third degree when he has previously been convicted of any crime and he "possesses any dagger, dangerous knife, dirk, razor, stiletto, imitation pistol, or any other dangerous or deadly instrument or weapon with intent to use the same unlawfully against another." P.L. §§ 265.01(2); 265.02(1).
Viewing the evidence in the light most favorable to the prosecution, it is apparent that an insufficiency of the evidence argument would not have succeeded, and thus that petitioner cannot establish prejudice as the result of appellate counsel's failure to raise the claim.
Petitioner's argument that appellate counsel was ineffective in not arguing insufficiency of the evidence fails Strickland's professional judgment prong as well. To succeed on this claim, petitioner must establish that counsel did not exercise reasonable professional judgment, but instead "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533; Benn, 917 F. Supp. at 206; see also Jones, 463 U.S. at 749-752, 103 S. Ct. at 3312-3313. Appellate counsel's correspondence with petitioner reveals that counsel considered and rejected an argument proposed by petitioner that assault in the first degree was unsupported by evidence of serious physical injury. See Pinard Letter. Counsel explained that he believed petitioner's proposed argument to be weak because although Pope's ability to lift her arm was not in evidence, but only mentioned in closing argument, the prosecutor's positive evidence of serious injury included Pope's medical records, Dr. Kleiner's statement that Pope had received "multiple stab wounds," and Pope's testimony that she required physical therapy as a result of the wounds. See id. Appellate counsel thus gave due consideration to petitioner's proposed argument and chose four alternative, substantial arguments to pursue on appeal. Since petitioner's proposed claim was without merit, petitioner cannot show that it was an unreasonable exercise of professional judgment for counsel to believe other arguments to be more promising, and to advance them on appeal.
* * * *
It is thus apparent that all of the claims petitioner argues should have been raised on appeal were meritless and had no likelihood of success, either because they were unpreserved for appeal, unsupported by the trial record, or legally without substance. Counsel's exercise of professional judgment in foregoing these arguments and instead selecting four more promising arguments to raise on appeal was clearly reasonable. It follows that the state appellate court's determination, that appellate counsel was not ineffective, is neither "based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding," nor "contrary to, or . . . an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d); Williams v. Taylor, 120 S. Ct. 1495, 1518-1523 (2000); see also Vasquez v. Strack, 228 F.3d 143 (2d Cir. 2000); Jones v. Stinson, 229 F.3d 112, 119-121 (2d Cir. 2000); Francis v. Stone, 221 F.3d 100, 107-111 (2d Cir. 2000). Accordingly, under the Antiterrorism and Effective Death Penalty Act, there is no basis for granting federal habeas relief.
CONCLUSION
For the reasons set forth above, I respectfully recommend that the petition for a writ of habeas corpus be denied, and that the action be dismissed. As the petition presents no question of substance for appellate review, I recommend that a certificate of appealability not be issued. See Reyes v. Keane, 90 F.3d 676, 679 (2d Cir. 1996). I further recommend that the Court certify pursuant to 28 U.S.C. § 1915(a), that any appeal from this order would not be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 82 S. Ct. 917 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this report to file written objections. See also Fed.R.Civ.P. 6(a) and (e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Laura Taylor Swain, U.S.D.J., and to the chambers of the undersigned, Room 1660. Any requests for the extension of time for filing objections must be directed to Judge Swain. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 160 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrman, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Secretary of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).
Respectfully submitted,