Opinion
00 Civ. 6203 (DAB) (JCF)
March 22, 2002
REPORT AND RECOMMENDATION
Nathaniel Battle brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction following a jury trial in New York State Supreme Court, New York County, for robbery, assault, aggravated assault on a police officer, reckless endangerment, and criminal possession of a weapon. Mr. Battle argues that his conviction should be overturned because: (1) his confession to the police should have been suppressed; (2) his trial attorney was ineffective in that he failed to provide a timely alibi notice; (3) the prosecutor failed to disclose the fact that some of the police witnesses were under investigation for corruption; (4) his sentence was excessive; (5) the prosecutor improperly introduced evidence before the grand jury concerning a past disciplinary infraction by the petitioner in state prison; and (6) his appellate counsel was ineffective.
For the following reasons, I recommend that the petition be denied.
According to the respondent, the trial and hearing transcripts in this case cannot be located. (Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus ("Resp. Memo.") at 3 n. 2). The facts in this section are therefore taken from the briefs submitted by the petitioner and the prosecutor on direct appeal. The parties' briefs are consistent with respect to all material facts.
On January 15, 1993, two men walked into the Red Apple Supermarket at 145th Street and Riverside Drive in Manhattan and robbed the store employees at gunpoint. The men then fled to a waiting cab where a third accomplice waited, as the manager ran from the store yelling that he had been robbed. A crowd began chasing the cab. When it stopped at a stoplight, police officers, responding to a call, surrounded the cab. After a shoot-out between the assailants and the police, the assailants fled from the car, closely followed by the officers. The petitioner, Nathaniel Battle, was soon arrested in a nearby alleyway. He was immediately taken to the police station where he confessed to being one of the assailants.
A. The Suppression Hearing
Prior to trial, New York State Supreme Court Justice Carol Berkman held a suppression hearing on December 22, 1993, to determine the admissibility of Mr. Battle's confession. The following factual summary is derived from the testimony given at that hearing.
On January 15, 1993, at approximately 1:30 p.m., a number of police officers and detectives were called to the area of 145th Street and Broadway in Manhattan. (Brief for Appellant ("App. Br.") at 3, attached as Exh. B to Affirmation in Opposition of Edward Rodriguez dated Jan. 15, 2002 ("Rodriguez Aff.")). Officer Arquimedes Santiago joined other officers running toward an alleyway on 145th Street. While searching the area, he heard over the radio that a suspect was in custody. Officer Santiago found the petitioner handcuffed and surrounded by officers in a basement boiler room off the alleyway. (App. Br. at 3; Brief for Respondent ("Resp. Br.") at 6, attached as Exh. C to Rodriguez Aff.). Officer Santiago and his partner, Stephen Gatti, immediately took custody of the petitioner and put him in their patrol car. (App. Br. at 3; Resp. Br. at 7). The petitioner had blood on the top of his head, his face, and his shirt. (App. Br. at 4).
Detective Louis Torrellas, arriving at the scene in time to see the petitioner being put into the patrol car, overheard Mr. Battle admit that he had been one of the assailants involved in a shoot-out on Broadway. Detective Torrellas also learned from another officer that the petitioner had shot a police officer. (App. Br. at 4; Resp. Br. at 7). About thirty minutes later, the detective had a conversation with Hyung Lee, a civilian witness, who had been near his liquor store when he heard four or five gunshots. Mr. Lee reported that he had seen a black man in a green army coat come from Broadway, holding a gun, followed closely by police officers. After trying to get into a parked car, the man ran into an alley. Mr. Lee further reported that the police came out of the alleyway with the same man he had seen earlier. (App. Br. at 4).
Meanwhile, Officers Santiago and Gatti drove Mr. Battle to the police station. During the two to three minute ride, the petitioner fought, kicked, and cursed repeatedly. Officer Gatti, who was seated next to him, held his flashlight against the petitioner to prevent blood from getting on his uniform. During the car ride, the petitioner never complained of any injury. (App. Br. at 4-5; Resp. Br. at 7).
At approximately 1:40 p.m., they arrived at the police station and the petitioner was taken to an interview room on the second floor. (App. Br. at 5; Resp. Br. at 7). The petitioner did not ask for an attorney. He just kept mumbling while Officer Santiago repeatedly told him to "shut up." (App. Br. at 5). After approximately fifteen to twenty minutes, Detective Frederick Appel arrived and administered Miranda warnings to the petitioner. Mr. Battle indicated that he understood the warnings and agreed to answer the detectives' questions. He then confessed that he had been one of the assailants who had robbed the Red Apple Supermarket and that he had shot at police officers who surrounded the car, probably hitting one of them. (App. Br. at 5; Resp. Br. at 8-9).
During the interview, none of the officers had their guns drawn and all spoke to the petitioner in even-handed, conversational tones. (App. Br. at 5; Resp. Br. at 9). According to the officers who testified, Mr. Battle appeared uncomfortable and to be in some pain as he gave his statement. While the petitioner gave his oral testimony, Detective Appel wrote it down. When Mr. Battle finished, the detective asked him to sign it but Mr. Battle refused. He then stated for the first time that he had been shot and wanted to go to the hospital. (App. Br. at 5; Resp. Br. at 9).
At that point, Emergency Medical Services technician John McConnell was immediately brought in to examine the petitioner. Mr. McConnell had been waiting outside the interview room for approximately twenty minutes. (App. Br. at 5; Resp. Br. at 7-9).
The examination revealed two lacerations on the petitioner's head, some blood on his lower lip, and several cuts on his leg. The paramedic noted that the petitioner's lip injury was consistent with his having been punched. His most serious injury was a thumbnail-size bullet wound in his right buttocks that sporadically seeped blood. (App. Br. at 5-6; Resp. Br. at 9-10). The paramedic found no sign of bruising on his face, no bumps on his head, no broken teeth, and no spinal fluid in his ears. Mr. Battle's vital signs were stable. (App. Br. at 5-6; Resp. Br. at 10). The petitioner reported that he had never lost consciousness and Mr. McConnell found him to be alert and oriented.
The petitioner complained of pain in his buttocks, elbow, and head but could stand unaided and walk with some difficulty. (App. Br. at 5-6; Resp. Br. at 10). Mr. McConnell treated the wounds to Mr. Battle's head and buttocks.
At the hearing, Detective Gerald Dimuro testified as well. On the same day that the petitioner had confessed, Detective Dimuro went to Lincoln Hospital and interviewed Byron Jackson, who eventually confessed to having been the third assailant who waited in the cab while the petitioner and the other assailant, Roosevelt Withers, robbed the Red Apple Supermarket. (App. Br. at 6; Resp. Br. at 10-11). Detective Dimuro further testified that on July 1, 1993, line-ups were conducted and two store employees, Florence Ogundeinde and Johnny Jumbo, identified Mr. Battle as one of the robbers. A third store employee, Marcus Seda, was unable to make an identification. Officer Ralph Vitacco also identified Mr. Battle in the line-up as the person who shot him from the cab. (App. Br. at 6; Resp. Br. at 11-12). According to Detective Dimuro, after the line-ups, Mr. Battle told the detectives that the 30th Precinct was full of corrupt cops, that he had been beaten by cops on the day of the robbery, that he had been shot, and that "`this is just the tip of the iceberg, that he was going to blow the whole whistle on the 30th Precinct.'" (App. Br. at 6-7; Resp. Br. at 12).
The petitioner also testified at the hearing. He stated that after he was arrested and on his way to the police station, the officers struck him repeatedly in the face with a flashlight, causing him to lose consciousness quite a few times. Officer Santiago gave the orders to beat the petitioner. (App. Br. at 7; Resp. Br. at 13-14). He was dragged out of one police car and into another, where he was again hit repeatedly on the knee, head, ribs, and kidneys, this time with a gun. At some point during the ride, the officer seated next to him shot him in the hip. He yelled in pain, but the officers, after checking underneath his clothes, pronounced that there was nothing wrong with him. The officers then took him to the police station. Unable to walk, he was dragged by the police into the station and up to the interview room. According to the petitioner, everyone at the precinct looked the other way because they knew what was going on. (App. Br. at 7; Resp. Br. at 14-15). Once in the interview room, a detective told him, "`All we want you to do is say one thing, say you shot the police officer.'" (App. Br. at 7; Resp. Br. at 15). When he refused, he was knocked to the floor. At some point, Mr. Battle stated that he had been shot and needed a doctor. The detective told him that he would get a doctor only after he confessed. When he again refused, the detective tried to stomp on his feet but he quickly moved out of the way. At that point, paramedics came into the room. (App. Br. at 7-8; Resp. Br. at 15). According to Mr. Battle, he was never read his Miranda rights and never gave a confession. (App. Br. at 8; Resp. Br. at 16).
At the hearing, the petitioner also admitted to having a criminal record consisting of two separate incidents of armed robbery at other Red Apple Supermarkets in 1983, both of which he pled guilty to, and a third armed robbery at a Key Food Supermarket, which involved a waiting cab. With regard to the third robbery, Mr. Battle told the police at the time that he had coincidentally gotten into the cab with the actual robbers but at the hearing admitted that this was a lie. (App. Br. at 8; Resp. Br. at 12-13).
The respondent's appellate brief states that the third robbery occurred at another Red Apple supermarket.
At the conclusion of the hearing, Justice Berkman denied the petitioner's motion to suppress his confession. She found that Mr. Battle had been properly advised of his rights prior to giving his statement and that his confession was not the product of police brutality or threats. The court specifically noted that, even though the officers had the motive and opportunity to lie, the EMS technician, who corroborated their story, did not. (App. Br. at 9; Resp. Br. at 16).
B. The Trial
The following is a summary of the evidence presented at trial.
At around 1:00 p.m. on January 15, 1993, three men flagged down a cab and directed it toward 144th Street and Riverside Drive in Manhattan. Two of the men got out while the third stayed behind to hold the cab. At approximately 1:00 p.m., Ms. Ogundeinde was working at the cash register at the Red Apple Supermarket on 145th Street and Broadway when two men entered. One demanded that she give him money from the register while the second man put a gun to the head of the produce manager, Mr. Seda, and ordered him to go stand beside Ms. Ogundeinde at the cash register. The second man then put the gun to the head of the store manager, Mr. Jumbo, and forced him to open a safe. (App. Br. at 10-11; Resp. Br. at 17-18).
After taking money from both the cash register and the safe, the robbers fled. Mr. Jumbo followed them outside and began yelling that he had been robbed. He told another store employee, Angel Mejias, to alert the police as he began chasing the robbers down the street, accompanied by other people from the neighborhood. (App. Br. at 11; Resp. Br. at 19-20).
The two robbers ran to the cab, which was still waiting at 144th Street and yelled at the cab driver to "go, go, go!" As the driver started moving the cab forward very slowly, one of the assailants ordered him to go faster, threatening him with his gun. He continued going very slowly. When the cab stopped at a stoplight, a crowd surrounded the car. At that point, one of the assailants leaned out of the window and fired a shot into the crowd. (App. Br. at 11-12; Resp. Br. at 20-21).
Police Officers Thomas Smith and Dennis Concepcion, who had been alerted to the robbery by Mr. Mejias, arrived at the scene.
A third officer, Ralph Vitacco, arrived on foot. All had their guns drawn. Officer Vitacco yelled for the occupants of the cab to put their hands ups. (App. Br. at 12; Resp. Br. at 21-22). He was between two and five feet from the cab when one of the men leaned out the window and shot him in the leg. Officer Vitacco later identified the petitioner as the shooter. A volley of gunshots ensued. While the officers were reloading their weapons, the assailants jumped from the cab and started running. (App. Br. at 13; Resp. Br. at 23-24). One assailant, Roosevelt Withers, was quickly apprehended by Officer Smith as Officer Concepcion followed the other two assailants. When the assailants turned the corner onto 145th Street, Officer Concepcion briefly lost sight of them. (App. Br. at 13; Resp. Br. at 24-26).
Meanwhile, Dennis Scherback was stopped at a traffic light at 145th Street when he heard gunshots. He got out of his vehicle to investigate and started walking toward 144th Street when he saw two men running toward him. One had on a green army jacket and was carrying a gun. He saw the armed man stop and attempt to get into a parked car. Officer Concepcion had turned the corner in time to see the men he had been chasing attempt to get into a parked car. Just then, Officers Santos Tirado and Anthony Diaz arrived at the scene and approached the two assailants. The man at the parked car turned and aimed at them. Officers Tirado and Diaz opened fire, and the man at the car fled toward some stores and then down an alleyway. (App. Br. at 13-14; Resp. Br. at 25-27). About that time, Hyung Lee, a liquor store owner, heard gunshots and saw a man wearing an army jacket walk up to his store with a gun. He then saw police officers running toward him and watched as the gunman ran off followed by Officer Tirado. (App. Br. at 14; Resp. Br. at 26-28).
Officers Diaz and Conception were following Officer Tirado when they spotted another black man crouched next to a parked car. Thinking he was somehow involved in the crime, they tackled him and began striking him with a gun. Mr. Lee intervened and told them the real assailant had run into the alleyway. (App. Br. at 14-15; Resp. Br. at 28). Joining Officer Tirado in the alleyway, Officer Diaz found a revolver on the ground. It was still warm as he picked it up and put it in his waistband. He then joined Officer Tirado and together they walked through a doorway which lead to a basement room. In a small storage room behind the first room, they found the petitioner in a crouching position. When the petitioner ignored Officer Tirado's order to get up, Officer Diaz grabbed him, whereupon he began swinging at the officers. Officer Tirado then hit him several times with his fist and Officer Diaz struck him on the head with his gun. A few seconds later, another ten officers arrived and helped handcuff the petitioner. (App. Br. at 15; Resp. Br. at 29-30). When he was escorted out of the alley, Mr. Scherback, Mr. Lee, and another eyewitness, Fran Osasawa, all recognized Mr. Battle as the armed man they had seen on the street moments earlier. Two bullets were recovered from the petitioner's pants. (App. Br. at 15; Resp. Br. at 31).
There was also testimony at trial similar to that in the suppression hearing about the petitioner's ride to the police station, the waiving of his rights, his subsequent confession, and the medical treatment by the EMS technician. Mr. Battle did not testify at trial. (App. Br. at 16-17; Resp. Br. at 31-36).
Witnesses also testified about the identification line-ups held on July 1, 1993, in which Officer Vitacco, Mr. Jumbo, and Ms. Ogundeinde positively identified the petitioner but Mr. Seda was unable to identify anyone. (App. Br. at 17; Resp. Br. at 38-39).
Days before the trial started, Ms. Ogundeinde indicated to the assistant district attorney that she was unsure of her identification. (App. Br. at 17; Resp. Br. at 39).
Procedural History
On April 4, 1994, a jury convicted Mr. Battle of two counts of Robbery in the First Degree, N.Y. Penal Law § 160.15(4), two counts of Assault in the First Degree, N.Y. Penal Law § 120.10(1) (4), Aggravated Assault upon a Police Officer, N.Y. Penal Law § 120.11, Reckless Endangerment in the First Degree, N.Y. Penal Law § 120.25, and one count each of Criminal Possession of a Weapon in the Second and Third Degrees, N.Y. Penal Law §§ 265.03, 265.02(4). He was sentenced, as a persistent violent felony offender, to an indeterminate prison term of twenty-five years to life on the robbery counts to run concurrently with each other; twenty-five years to life on the assault counts to run concurrently with each other and consecutively to the robbery sentences; twenty-five years to life on the second degree weapons count to run concurrently with all other sentences; twenty-five years to life on the third degree weapons count to run consecutively to all other sentences; and twenty-five years to life on the reckless endangerment count to run consecutively to the other sentences. (App. Br. at 1; Resp. Br. at 1-2).
In September 1996, Mr. Battle appealed to the Appellate Division, First Department, arguing that: (1) his confession was involuntary; (2) his counsel was ineffective for failure to provide timely alibi notice; (3) the jury was never informed that several of the testifying police officers were under investigation for corruption; (4) his sentence was excessive; and (5) during the grand jury proceedings, the prosecution improperly confronted the petitioner with uncharged crimes and a prison disciplinary infraction. (App. Br.; Pro Se Supplemental Brief ("Supp. Br."), attached as Exh. D to Rodriguez Aff.). On April 21, 1998, the Appellate Division affirmed Mr. Battle's conviction, but modified his sentence. People v. Battle, 249 A.D.2d 116, 672 N.Y.S.2d 21
(1st Dep't 1998). Specifically, the Appellate Division found that:
(1) the trial court properly determined that the confession was voluntary; (2) counsel was not ineffective since the petitioner failed to consistently pursue an alibi defense; and (3) Mr. Battle's claims regarding grand jury impropriety and withholding of information by the prosecutor were "unreviewable because defendant has provided no competent record." Id. at 116-17, 672 N.Y.S.2d at 23. As to the excessive sentence claim, the court reduced Mr. Battle's sentence to an aggregate of seventy-five years to life.
Id. at 118, 672 N.Y.S.2d at 24.
On July 15, 1999, the petitioner applied for leave to appeal to the Court of Appeals. He raised the same claims as stated above, except that he did not challenge his sentence. (Rodriguez Aff., Exh. F). Leave to appeal was denied on July 30, 1999. (Rodriguez Aff., Exh. G).
The petitioner also brought collateral proceedings in state court. On June 23, 1995, he filed a pro se motion pursuant to New York Criminal Procedure Law ("CPL") § 440.10 in which he argued that the prosecution had failed to turn over a number of documents including the criminal record of a prosecution witness, statements that he had given to parole officers, a full copy of the grand jury transcripts, and a sketch he claimed a witness had viewed prior to identifying him in a line-up. (Rodriguez Aff., Exh. H). The State Supreme Court denied this motion on January 23, 1996. (Rodriguez Aff., Exh. J). On February 20, 1996, the petitioner applied for leave to appeal the denial of his CPL § 440.10 motion, pursuant to CPL § 460.15. The First Department denied this application on July 18, 1996. (Rodriguez Aff., Exh. K).
On July 8, 1998, Mr. Battle filed an application for a writ of error coram nobis, in which he argued that he was denied effective assistance of appellate counsel because his attorney failed to argue that the trial court erred by not making an inquiry into whether two sleeping jurors were unqualified to serve. (Rodriguez Aff., Exh. L). On March 30, 1999, the respondent requested that the First Department hold the petitioner's application in abeyance because the prosecutor was unable to locate a copy of the trial transcript. (Rodriguez Aff., Exh. M). On the same day, the petitioner supplemented his application, arguing that he should be granted a new trial due to the loss of the trial transcript. (Rodriguez Aff., Exh. N). On December 16, 1999, the Appellate Division denied the petitioner's application. People v. Battle, 267 A.D.2d 1109, 703 N.Y.S.2d 852 (1st Dep't 1999).
The petitioner moved again before the Appellate Division on December 15, 2000, for a writ of error coram nobis, arguing that his third appointed appellate counsel was ineffective because he adopted the brief of prior counsel without reading the trial transcript and failed to raise the additional claims that he was improperly was excluded from sidebar conversations and that a juror was erroneously removed two days into the trial over the objections of defense counsel. (Notice of Motion for a Writ of Error Coram Nobis, at 7, 9, 11-12), attached to Amendment to Habeas Corpus ("Amend.")). On July 5, 2001, the Appellate Division denied this motion. (Rodriguez Aff., Exh. P). The Court of Appeals dismissed the petitioner's application to appeal this decision on September 17, 2001. People v. Battle, 96 N.Y.2d 938, 733 N.Y.S.2d 378 (2001).
Mr. Battle filed the instant petition for a writ of habeas corpus on July 17, 2000, raising five claims. On March 1, 2002, he amended his petition to include an allegation of ineffective assistance of appellate counsel. All six of his claims fail for the reasons stated below.
Discussion
A. Involuntary Confession
Mr. Battle first argues that his confession was involuntary because he was "in physical distress, suffering from a gunshot wound and a gash on his head" and because police officers refused to give him medical treatment until after they had interrogated him. (Petition for Writ of Habeas Corpus ("Pet.") at E(2)(b).5).
He further argues that the trial court erred in placing too much emphasis on the fact that he was alert and oriented in the station house, while ignoring the fact that the overall atmosphere was coercive. (Traverse in Opposition to Attorney General's Memorandum of Law to Deny Writ of Habeas Corpus ("Reply Memo."), ¶ 10). This claim is without merit.
"No single criterion controls whether an accused's confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances." Green v. Scully, 850 F.2d 894, 901 (2d Cir. 1988) (citations omitted). However, in a habeas corpus proceeding, the district court does not evaluate those circumstances de novo. Rather, the state court's findings with respect to voluntariness are generally entitled to a presumption of correctness. Nelson v. Walker, 121 F.3d 828, 833-34 (2d Cir. 1997).
Following a suppression hearing on the admissibility of Mr. Battle's confession, the trial court in this case concluded that the statement need not be suppressed because the petitioner had been informed of his Miranda rights and his confession was not the product of police coercion or threats. (App. Br. at 9; Resp. Br. at 16). Justice Berkman supported this conclusion by noting that although the police officers may have had a motive to fabricate their testimony, Mr. McConnell, the paramedic who corroborated their version, did not. (App. Br. at 9; Resp. Br. at 16). The petitioner has proffered no evidence to rebut the presumption of correctness accorded to the judge's decision.
Justice Berkman was entitled to disregard the petitioner's version of events in favor of those of the police officers and the paramedic. The petitioner's testimony, which was self-serving on its face, included allegations that he had been repeatedly beaten by officers, that he had repeatedly lost consciousness, that he was in such pain that he could not walk from the patrol car to the police station, and that he had pled for medical attention. This was directly contradicted by the account of the paramedic who testified that Mr. Battle had told him that he had never lost consciousness throughout the ordeal. Mr. McConnell also testified that the petitioner appeared tired but not agitated, was alert and oriented, and could walk, although with some difficulty. The paramedic's testimony tends to corroborate the version of the officers, who testified that the petitioner did not complain of pain during the interview, indicated an understanding of his rights, answered questions voluntarily, and never asked for medical attention until the end. Under these circumstances, Justice Berkman's finding that the confession was voluntary was not unreasonable. See Stribling v. Smith, No. 97 Civ. 71848, 2000 WL 796181, at *11 (E.D.Mich. May 31, 2000) (confession was voluntary where there was no credible evidence that petitioner complained of pain during interrogation, no evidence that he suffered adverse health effects from alleged delay in treatment, no evidence that officers used promise of medical care to induce confession, and duration of interrogation was not long).
Because the petitioner was afforded a full and fair hearing concerning his confession and he has failed to proffer evidence that suggests that the court's decision was erroneous, this claim must fail.
B. Ineffective Assistance of Counsel
The petitioner next argues that he was denied effective assistance of trial counsel. In order to obtain the reversal of a conviction due to ineffective assistance of counsel, the petitioner must demonstrate that (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). When reviewing trial counsel's performance, a habeas corpus court must be "highly deferential" and "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. The court must not rely upon hindsight and second-guess counsel's unsuccessful trial strategy. Id.
With respect to the first prong of the Strickland test, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness . . . . [T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Id. at 688. The prejudice prong of the test requires a "showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable," and that "but for" the claimed errors of counsel, the trial result would have been different. Strickland, 466 U.S. at 687, 694.
In this case, Mr. Battle argues that he was denied effective assistance of trial counsel because his counsel failed to provide timely alibi notice. (Pet. at E(2)(b).5). According to the petitioner, his counsel was aware of a possible alibi defense early on in the case because he was present when Mr. Battle testified before the grand jury that he had been someplace else when the crime was committed. His counsel had sent an investigator to interview an alibi witness, and had received an affidavit from him. Mr. Battle alleges that his counsel later admitted that the alibi issue "fell between the cracks." (Reply Memo., ¶¶ 13, 15).
Mr. Battle's alibi witness would have purportedly testified that he and the petitioner were on 145th Street, between Amsterdam and Broadway, when the shots were fired, prompting them to run in difference directions. (App. Br. at 22 n. 6).
The respondent counters that trial counsel's performance was reasonable under the circumstances. The respondent first contends that counsel, who communicated regularly with his client, would not have chosen to present an alibi defense, but did so at the last minute only to satisfy his client's request. The respondent further notes that the alibi witness had made it known that he had no intention of testifying in Mr. Battle's case and that the petitioner did not consistently pursue a alibi defense. (Resp. Memo., at 14-15). Finally, the respondent contends that trial counsel pursued a "vigorous mistaken identity defense in the face of an overwhelming case presented by the prosecution." (Resp. Memo. at 15).
Although it is doubtful that trial counsel's conduct "fell below an objective standard of reasonableness," it is unnecessary to address this issue because Mr. Battle has failed to show that there is a reasonable probability that the alibi testimony would have changed the outcome of the trial. See Strickland, 466 U.S. at 688, 694. Mr. Battle's alibi testimony strains credulity.
Apparently, Mr. Battle wanted the jury to believe that he had stumbled on to the scene and that someone else was the true perpetrator even though he had confessed to the crime and a number of eyewitnesses identified him as the perpetrator at every step of the way from the Red Apple Supermarket to the alleyway. Two eyewitnesses, Mr. Jumbo and Ms. Ogundeinde, identified Mr. Battle as the robber in the Red Apple Supermarket. Officer Vitacco identified the petitioner as the person who had shot him through the cab window. Three eyewitnesses, Mr. Scherback, Mr. Lee, and Mr. Osasawa, all recognized Mr. Battle as the armed man they had seen on the street attempting to flee from police. A "warm" gun was found by Officer Diaz in the alleyway where the petitioner was hiding and two bullets were recovered from the petitioner's pants.
Since the additional testimony of an alibi witness would have added little hope of changing the outcome of the case against Mr. Battle, this claim must fail.
C. Failure to Disclose Brady Material
The petitioner next claims that the prosecution withheld the fact that two police witnesses were under investigation for corruption at the time of the trial and thus violated his due process rights as established in Brady v. Maryland, 373 U.S. 83 (1963).
Under Brady, the state violates a defendant's due process rights when it suppresses evidence favorable to an accused and the evidence is "material either to guilt or punishment." Id. at 87.
"When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule." Giglio v. United States, 405 U.S. 150, 154 (1972) (internal quotation and citation omitted). Favorable evidence is only "material" where "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682 (1985). "A `reasonable probability' of a different result is accordingly shown when the government's evidentiary suppression `undermines confidence in the outcome of the trial.'" Kyles v. Whitley, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S. at 678).
In this case, the petitioner has not demonstrated that the fact that several police witnesses were under investigation for corruption meets the standard of materiality set forth in Bagley.
According to his brief on direct appeal, soon after the petitioner was convicted, a number of police officers at the 30th Precinct were accused of accepting protection money, stealing money from drug dealers, distributing narcotics, committing perjury, and tampering with evidence. Two officers who testified at the petitioner's trial, Officers Santiago and Armando Palacio, were among those implicated. (App. Br. at 23).
Even if the defense had had this information at trial and challenged the two officers' testimony, it is unlikely that the outcome would have been different. Officer Santiago's involvement included vouchering the gun that had been found in the alleyway and escorting the petitioner on his three minute ride to the police station. Officer Palacio's role was even smaller. Officer Santiago's testimony regarding the car ride was corroborated by Officer Gatti and, even more importantly, a number of civilian witnesses and other police officers provided corroborating evidence of the robbery and the shoot-out with police officers. Thus, even if information was inappropriately withheld by the prosecution, the petitioner has failed to show that "its suppression undermines confidence in the outcome of the trial." Bagley, 473 U.S. at 678.
Officer Palacio's testimony at trial consisted solely of trying to obtain fingerprints from the gun found in the alleyway. He did not find any. (Affirmation in Opposition to Defendant's Motion to Vacate Judgment dated Sept. 8, 1995, ¶ 20, attached as Exh. I to Rodriguez Aff.).
D. Excessive Sentence
The petitioner next argues that the trial court erred in imposing multiple consecutive sentences. (Pet. at E(2)(b).6). The respondent counters that this claim should be dismissed because it unexhausted and procedurally barred.
The doctrine of exhaustion generally requires a petitioner in a habeas corpus proceeding to exhaust all available state court remedies for each claim prior to federal review. 28 U.S.C. § 2254(b), (c); Duckworth v. Serrano, 454 U.S. 1, 3 (1981); Lurie v. Wittner, 228 F.3d 113, 123-124 (2d Cir. 2000), cert. denied, 532 U.S. 943 (2001). Nevertheless, a claim will be deemed exhausted if it is clear that the state court would find it procedurally barred. Gray v. Netherland, 518 U.S. 152, 161-62 (1996); Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 170 (2d Cir. 2000); Bossett v. Walker, 41 F.3d 825, 828-29 (2d Cir. 1994). That same procedural bar, however, precludes the habeas corpus court in most instances from reviewing the defaulted claim on the merits. Id. Substantive review will only be available if the petitioner is able to show cause for the default and resulting prejudice, or "demonstrate that failure to consider the federal claim will result in a `fundamental miscarriage of justice,' or, in other words, an unjust incarceration." Spence, 219 F.3d at 170 (quoting Coleman v Thompson, 501 U.S. 722, 750 (1991)); see also Gray, 518 U.S. at 162; Bossett, 41 F.3d at 829.
In this case, Mr. Battle's excessive sentence claim is unexhausted since he failed to raise it in his letter seeking leave to appeal to the Court of Appeals. See Ramirez v. Attorney General of the State of New York, 280 F.3d 87, 94-95 (2d Cir. 2001) (to fully exhaust claim raised on direct appeal in New York state court, petitioner must present it in letter application to Court of Appeals).
Furthermore, Mr. Battle is now procedurally barred from returning to state court to exhaust this claim. This is because New York law provides for only a single application for direct review. N.Y. Rules of Court, Court of Appeals § 500.10(a); see also Spence, 219 F.3d at 170. Mr. Battle's claim is also barred from collateral review because it was raised and addressed on direct appeal and could have been included as a ground for seeking leave to appeal to the Court of Appeals. See CPL §§ 440.10(2)(a), 440.20(2) (collateral review barred if claim raised and addressed on appeal); CPL § 440.10(2)(c) (collateral review barred if claim could have been raised on direct appeal); see also Woods v. Greiner, No. 00 Civ. 0864, 2001 WL 484028, at *3 (S.D.N.Y. May 8, 2001) (claim deemed procedurally defaulted when petitioner appealed to Appellate Division but did not include in letter seeking leave to appeal to Court of Appeals). Mr. Battle has not suggested any cause for failing to assert this claim on appeal, nor has he demonstrated prejudice resulting therefrom. Finally, he has not shown that manifest injustice will result if these grounds are not considered. Accordingly, this claim is procedurally barred and may not be reviewed on the merits.
E. Improper Testimony before Grand Jury
Mr. Battle next contends that the grand jury proceedings were flawed because the prosecution introduced evidence that the defendant was in "possession of an alcoholic [sic] on a previous sentence served at Green Haven Corr. Fac." He further argues that the evidence had no relevance other than to show that the defendant had a propensity to commit the crimes for which he was charged. (Pet. at E(2)(b).6).
Even assuming for the sake of argument that the prosecution's decision to offer this evidence before the grand jury was erroneous, the subsequent guilty verdict by the petit jury cured any prejudice caused by this error. See Lopez v. Riley, 865 F.2d 30, 33 (2d Cir. 1989) (errors in grand jury proceedings involving the use of prejudicial evidence were rendered irrelevant by conviction after trial, and thus did not entitle petitioner to habeas relief); see also Velez v. New York, 941 F. Supp. 300, 316 (E.D.N.Y. 1996).
[T]he petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendant w[as] guilty as charged, but also that [he is] in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.
United States v. Mechanik, 475 U.S. 66, 70 (1986). Thus, this claim must fail.
F. Ineffective Assistance of Appellate Counsel
Since Mr. Battle amended his petition to include this claim after the respondent had answered the original petition, the respondent has not had the opportunity to address this new claim. However, no prejudice results since this claim is without merit.
Finally, Mr. Battle challenges the performance of his third appellate attorney, Howard Simmons, arguing that counsel "failed to examine the record" and raise "meritorious issues" and instead simply adopted the appellate brief submitted by former counsel. (Amend. at 4a, 8). To establish that he was deprived of effective appellate counsel in violation of the Sixth Amendment, Mr. Battle must demonstrate (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that there existed a reasonable probability of a different result in the proceedings, but for the errors of counsel. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (applying the Strickland standard to evaluate appellate counsel's effectiveness). It is well recognized that an appellate attorney "need not advance every argument, regardless of merit, urged by the appellant." Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994) (quoting Evitts v. Lucey, 469 U.S. 387, 394 (1985)). In fact, winnowing out the weaker claims and focusing on the stronger ones "is the hallmark of effective appellate advocacy." Smith v. Murray, 477 U.S. 527, 536 (1986) (citing Jones v. Barnes, 463 U.S. 745, 751-52 (1983)). For an appellate attorney to be found ineffective for failing to raise certain issues, the court must determine that "significant and obvious" issues were abandoned while "clearly and significantly weaker" issues were pursued. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
The arguments that Mr. Battle now claims should have been raised are that the trial court erred when it excluded the petitioner from sidebar conversations and that it improperly removed a juror after the trial had started over the objections of defense counsel. (Amend. at 9, 12). Both of these issues are exhausted since they were raised in the petitioner's second application for a writ of error coram nobis.
Mr. Battle alleges that his appellate counsel erred by leaving out "three major issues" (Amend. at 4). However, I am only able to discern two from his amended petition.
(1) Exclusion from Sidebar Conversations
Although under New York law a defendant has the right to be present during jury voir dire and sidebar discussions when the merits of the case are addressed, "the Federal Constitution does not require a defendant's presence at sidebar conferences." Gaiter v. Lord, 917 F. Supp. 145, 152 (E.D.N.Y. 1996) (citations omitted). Due process does require "the presence of defendants during criminal proceedings `to the extent that a fair and just hearing would be thwarted by [their] absence.'" Id. at 152 (citations omitted).
Mr. Battle has not shown that he was prejudiced in any way by his alleged absence from sidebar conversations. See Sanchez v. Duncan, ___ F.3d ___, No. 00-2629, 2002 WL 318293, at *4 (2d Cir. March 1, 2002) (where defendant failed to "sufficiently demonstrate that his absence from the sidebars frustrated the fairness of the proceedings" no "structural error" occurred and any "non-structural error" was harmless); United States v. Feliciano, 223 F.3d 102, 111-12 (2d Cir. 2000) (any error committed by court for refusing to allow defendant to participate in sidebar voir dire conferences was not "structural error" and was harmless), cert. denied, 532 U.S. 943 (2001); Harmon v. New York, No. 97-CV-2539, 2001 WL 1590522, at *4 (E.D.N.Y. Dec. 11, 2001) (defendant's absence during sidebar conversations was held harmless where he was represented at all times by counsel and made no assertion of prejudice). Under the circumstances, it can hardly be said that appellate counsel's decision to forego this claim "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 669. And even if it did, the petitioner has failed to show, in any way, how his presence at the sidebar would have changed the outcome of the trial. Id. at 694.
(2) The Removal of a Juror
Mr. Battle next maintains that appellate counsel should have raised an issue concerning the removal of a juror. He specifically alleges that after the jury had been empaneled and the trial had proceeded for several days, a male Hispanic juror suddenly failed to show up. The trial judge removed him and replaced him with an alternate over defense counsel's objections and without inquiring into the reasons for his absence. (Amend. at 12-13). This claim is also without merit. Federal law explicitly permits the substitution of alternate jurors prior to the start of jury deliberations. See Fed.R.Crim.P. 24(c). Furthermore, the "`substitution of an alternate juror for reasonable cause is the prerogative of the court and does not require the consent of any party.'" United States v. Millar, 79 F.3d 338, 342 (2d Cir. 1996) (quoting United States v. Floyd, 496 F.2d 982, 990 (2d Cir. 1974) (alterations omitted)); see also Edmonds v. McGinnis, 11 F. Supp.2d 427, 432 (S.D.N.Y. 1998) (adopting federal statutory analysis in examining constitutional claim for replacement of juror). Here, Mr. Battle has failed to show that he suffered any prejudice because of the substitution. Nor has he shown that either the mere act of excusing the juror or the way it was done had an undue impact on the jury. Thus, Mr. Battle's appellate counsel was not ineffective for failing to raise this claim.
Conclusion
For the reasons set forth above, I recommend that Mr. Battle's petition for a writ of habeas corpus be denied. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation.
Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, Room 2510, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.