Opinion
02-CV-3204, 03-MISC-0066
November 7, 2003
MEMORANDUM JUDGMENT ORDER
The petition for a writ of habeas corpus is denied, No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
This petition was filed on May 28, 2002, Petitioner, sometimes referred to as defendant, claims (some of the claims and supporting facts are redacted in view of their length and repetitive nature):
Ground one: Defense Counsel's waiver of Petitioner's right to attend and take part in voir dire was invalid.
Supporting facts: Defense counsel's waiver of Petitioner's right to be present at sidebar conferences with potential jurors was invalid where the court, itself recognized that "defendant doesn't understand" what he was waiving. As a result, petitioner was deprived of his right to be present at trial during bench conferences at which he could have proved valuable input into counsel's discretionary decisions to excuse several prospective jurors,
Ground two: The Court's jury instruction that any act in furtherance of the crime constituted an attempt [was improper].
Supporting facts: To prove petitioner guilty of attempted murder in the first degree, the prosecution was required to show that Petitioner engaged in conduct which tended to effect the commission of first-degree murder, that is, mat he committed acts which came within dangerous proximity of the criminal end. The jury likely never made this determination because the court's jury instruction on attempt were improper.
Ground three: Imposition of a fifty year to life sentence upon Petitioner, the maximum sentence permitted by law, was unduly harsh.
Supporting facts: Petitioner, who was thirty nine years old at the time of his sentencing, was sentenced to an aggregate prison term of fifty years to life as a first felony offender. Petitioner lacked any prior criminal convictions, and was arrested once for a misdemeanor charge about two months before the present offense. He had a stable history of productive employment until incarcerated for the instant case. He also expressed deep remorse.
Ground four: A justification charge to the jury should have been granted.
Supporting facts: Petitioner's case warranted a justification charge, because Petitioner was shot in the back twice by a police officer before Petitioner attempted to return shots to protect himself. Even the evidence at Petitioner's trial proved that petitioner was shot in the back first. Medical evidence that was not brought out at Petitioner's trial will prove that Petitioner was shot in the back twice. Petitioner's due process rights were violated.
The evidence supports The following statements:
On June 16, 1994 shortly after 5:30 p.m., on the elevated platform of the Bay Parkway subway station in Brooklyn, petitioner (hereinafter "defendant") shot his wife, Miriam Betancourt, in the head, killing her, Defendant then turned and fired his gun at Police Officer Xavier Swindell. Officer Swindell and his partner, Police Officer Denise Manigo, returned fire.
Defendant was charged, under Kings County Indictment Number 7534/94, with two counts each of Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.27[1] [a] [I], and Attempted Aggravated Assault Upon a Police Officer (N.Y. Penal Law §§ 110.00/120.11), and one count each of Reckless Endangerment in the First Degree (N.Y. Penal Law § 120.15), Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03), and Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02).
Defendant was convicted, after a jury trial, of Murder in the Second Degree (P.L. § 125.25[1] and Attempted Murder in the First Degree (P.L. § 110.00/125.27[1][a][I], and was sentenced to consecutive prison terms of twenty-five years to life for each count.
Defendant appealed from his judgment of conviction to the Appellate Division.
In his brief in support of his appeal, defendant raised the following claims;
1. Defendant's waiver of his right to attend sidebar conferences during the jury selection was invalid;
2. The trial court's attempted first-degree murder instructions were erroneous; and
3. Defendant's sentence was harsh and excessive.
By decision and order dated October 1, 2001, the Appellate Division unanimously affirmed defendant's judgment of conviction. People v. Betancourt, 287 A.D.2d 460, 730 N.Y.S.2d 883 (2d Dep't 2000). The Appellate Division held that defendant's claim regarding the court's first-degree murder instructions was unpreserved for appellate review, and that, in any event, the instructions conveyed the correct legal standard. Id. The Appellate Division further held that defendant effectively waived his right to attend the sidebar conferences, and that defendant's sentence was appropriate. Id.
Defendant applied for permission to appeal from the Appellate Division to the New York Court of Appeals, See N.Y. Crim. Proc. Law §§ 450.90, 460.20, By certificate dated December 28, 2001, the Court of Appeals denied defendant permission to appeal further. People v. Betancourt, 97 N.Y.2d 679, 738 N.Y.S.2d 293 (2001) (Levine, J.).
On January 4, 2001, defendant filed a pro se motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law § 440.10, In his motion, defendant claimed that the court should have delivered a justification charge, and that his sentence was excessive.
By decision and order dated February 20, 2000, the Supreme Court denied defendant's motion without a hearing. It held that defendant's claim regarding the court's failure to deliver a justification charge was procedurally barred from review, because the claim was based upon on-the-record facts and that defendant was required to raise the claim on his direct appeal, N.Y. Crim. Proc. Law 440.10(2)(c). The court further held that defendant's claim challenging his sentence was not cognizable under New York Criminal Procedure Law § 440.10, but that, in any event, the sentence was not unauthorized, illegally imposed, or otherwise invalid as a matter of law. N.Y. Crim Proc. Law § 440.20.
Defendant applied to the Appellate Division for permission to appeal from the Supreme Court's denial of his motion to vacate his judgment of conviction. By decision and order dated April 10, 2001, defendant's application was dented.
Defendant sought leave to appeal to the New York Court of Appeals from the Appellate Division's denial of his request for permission to appeal. On May 7, 2001, the Court of Appeals dismissed defendant's application for leave to appeal because "the order sought to be appealed [was] not appealable under Criminal Procedure Law, section 450.90(1)".
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim 11(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 stale court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J, concurring and writing for the majority in this part). Under The "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App, LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence, Berbary v. Torres, No. 02-2463, 2003 U.S. App, LEXIS 16167, at * 25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1), This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A), A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003), see also Sup.Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion," Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted . . ." 28 U.S.C. § 2244(d)(2), The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar," (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures," Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements, Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 CIV. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law," Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. g 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably, Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances,' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing dining that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical, A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice, He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989), "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights," Coleman v. Thompson, 501 U.S. 722, 731 (1991), The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions," See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be stopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N. Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial courts and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits," Su v. Filion, No. 02-2683, 2003 U.S. App, LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 17S (2d Cir 2003)). This congeries of holdings leaves it an open question whether there are" situations in. which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted," Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence, Id. at 321, "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful," Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding,"), A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved." Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (I960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense," U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No. 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold," Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same), The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required, Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel, See Claudia v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance," Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict,'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant." Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA, See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus., see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066(JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 1102S. at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining The jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error, Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 3326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of claims.
A.
As the first ground in support of his petition, defendant claims that he was deprived of his right to attend sidebar conferences with prospective jurors because his waiver of his right to attend was invalid. Defendant's claim does not raise a federal constitution issue. The record shows that defendant expressly waived his right to be present during sidebar conferences with prospective jurors by knowingly, voluntarily and intelligently executing a written waiver, and implicitly waived his right to be present be declining the court' s repeated invitations to participate in the conferences.
Immediately prior to the commencement of jury selection, defense counsel stated, "If I may, your Honor, I explained the Antommarchi rights to my client. He understands them and he has executed the waiver" (v. 2), The following exchange then took place between the court, defendant, and defense counsel;
THE COURT: And do you understand, Mr. Betancourt, do you understand — listen to me — that you have a right to be present at all side bar and bench conferences where a potential juror is being examined with regard to that potential juror's bias or prejudice or other disposition that the juror may have with respect to the matter before this Court?
Do you understand that?
THE DEFENDANT: No, I don't understand that.
THE COURT: Mr. Santo [defense counsel], he said he doesn't understand.
MR. SANTO; Yes, Judge when I explained it to him what the Antommarchi right was, he seemed, in my opinion, to understand it as I explained it to him.
THE COURT: Well, Mr. Santo, it's apparent that this defendant doesn't understand what I'm saying right now, so what I'm going to do is if there is a juror who does approach the bench and does indicate that he or she has some bias or prejudice regarding this matter, that the defendant be permitted — that the defendant has a right to be present.
And if the defendant so desires to be present, he will be permitted to attended such conference.
MR. SANTO: Okay.
(emphasis added) (V. 3-4).
During the first round of jury selection, a prospective juror asked to approach the bench, and the court stated, "Come up. Bring the defendant up also" (V. 27), Defense counsel responded, "No, he doesn't want to come up" (V. 27-28). This process was repeated with other jurors.
This claim has no merit.
B.
Defendant claims that the trial court's attempted murder instructions improperly diminished the prosecutor's burden of proof and directed the jury to find defendant guilty of attempting to murder Police Officer Swindell. This claim is procedurally barred because the same claim was rejected by the Appellate Division on the basis of an adequate and independent state ground, The claim is meritless. Any error in the trial court's jury charge was harmless.
The Appellate Division, it its decision appropriately disagreed with defendant's contention that the trial court's attempted murder instructions required reversal. The Appellate Division found the claim to be unpreserved for appellate review. People v. Betancourt, 287 A.D.2d 460, 730 N.Y.S.2d 883 (2d Dep't 2000). The Appellate Division then found the claim to be without merit. Id. Thus, the claim was first denied on the procedural ground that defendant had failed to comply with New York State's contemporaneous objection rule. New York State's contemporaneous decisions. Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
The fact that the Appellate Division additionally chose to rule on the merits of this claim, after deciding that the claim was unpreserved, does not eliminate the procedural bar. See Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996); see also Velasquez v. Leonardo, 898 R 2d at 9 (both holding that a prisoner's claim was procedurally barred even though the Appellate Division also ruled on the merits of the claim).
Defendant has not asserted any cause or prejudice that would excuse him from the effect of his procedural default. See Murray v. Carrier, 477 U.S. 478, 485 (1986).
More importantly, defendant's claim is meritless. A state prisoner who is seeking federal habeas relief on the basis of a trial court's jury charge faces a heavy burden. "The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attach on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal." Henderson v. Kibbe, 431 U.S. 145, 154 (1977). A federal habeas court cannot issue a writ of habeas corpus because an "instruction is undesirable, erroneous, or even `universally condemned'. . . ." Cupp v. Naughten, 414 U.S. 141, 146 (1973), Instead, "[a]n allegedly erroneous jury instruction will form the basis for issuance of a writ of habeas corpus only if the instruction, when viewed in the context of the entire trial, was so unfair as to deprive defendant of a fundamentally fair trial." Carroll v. Hoke, 695 F. Supp. 1435, 1436 (E.D.N.Y 1988), aff'd, 880 F.2d 1318 (2d Cir. 1989); see also Cupp v. Naughten, 414 U.S. at 147 (the issue on habeas review is "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process").
Here, defendant has not demonstrated that the trial court's jury instructions deprived him of a fundamentally fair trial The court's attempted first-degree murder charge, when read in its entirely, was complete and conveyed the correct legal standard, In its main charge, the court instructed the jury;
A person is guilty of an attempt to commit a crime when, with the intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.
The meaning of this statute is applied to those cases if the person intends to commit a particular crime, that it is his conscious objective is to commit the crime; in this ease, murder in the first degree, and in acting with such intent, he engages in conduct which tends to effect the murder in me first degree, he has then committed and may be found guilty of attempted murder in the first degree, even though the murder itself was not completed or accomplished.
(588).
At the end of the court's main charge, before the jury was excused to begin its deliberations, the court delivered additional attempted first-degree murder charges, The jury had to find that "defendant engaged in conduct which tended to effect the commission of such act, to wit, he fired a loaded pistol at Xavier Swindell" (603). The court continued:
It's not necessary for the People to prove beyond a reasonable doubt that the defendant actually fired the gun. It would be sufficient if they proved that he turned and pointed the gun at Officer Swindell with the intent to commit the — with the intent to shoot at the officer — with the intent to effectuate the commission of the crime.
(603-04).
During the jury's deliberation, it submitted a note asking the court to repeat the definitions of the charged crimes, and to explain the difference between murder and attempted murder (607), The court replied:
An attempt to commit a crime reads as follows: A person is guilty of an attempt to commit a crime when with the intent to commit a crime, he engages in conduct which tends to effect the commission of such crime.
The meaning of this statute as applied to this case, is if a person intends to commit a particular crime, that is his objective is to commit the crime, in this case it would be murder in the first degree, and of course this relaxes to Xavier Swindell, and acting with such intent to engage in such conduct, he has then committed and may be found guilty of attempted murder in the first degree even though murder in the first degree was not completed or accomplished.
You will note that the required conduct for the commission of attempted murder in the first degree must be of the type which tends to effect the commission of murder in the first degree. This means doing an act or acts directed toward the accomplishment of the murder in the first degree.
Such conduct does not have to be the last act necessary to effect the commission of the crime of murder in the first degree, hut must be conduct which constitutes a substantial step toward the commission of the murder in the first degree.
The required conduct must be related to and directed toward the conduct which goes beyond mere planning and preparation, conduct so related to the commission of the crime of murder in the first degree, that in all reasonable probability, that murder in the first degree would have been committed, but for some interference or intervention developing or other factor.
(614-16) (emphasis added).
These instructions, when read in their entirety, conveyed the correct legal standard.
This claim has no merit.
C.
Defendant claims that his sentence was unduly harsh because he had a "productive employment" history, no prior criminal history, and had expressed remorse for his deadly actions. This claim fails to raise a federal question. In any event, defendant's sentence was proper.
Defendant's contention that his sentence was excessive fails to present a federal question because "no federal; constitutional issue is presented where . . . the sentence is within the range proscribed by state law," White v. Keane, 969 F.2d 1381, 1383-84 (2d Cir. 1992), Here, the sentence was within the range proscribed by New York law. Accordingly, defendant fails to present a federal question. This Court declines to pass on his sentence, See 28 U.S.C. § 2254 (a); Wainright v. Goode, 464 U.S. 78, 83-84 (1983); Ross v. Hodges, 423 U.S. 19, 21 (1975).
This claim has no merit.
D.
Defendant claims that the trial court erred in failing to deliver a justification charge to the jury. Defendant's claim is procedurally barred because the claim was previously rejected on an adequate and independent state ground, Morever, the claim is meritless.
A federal court, when reviewing a habeas petition from a state prisoner, cannot consider the merits of a federal constitutional claim when the state court refused to review the merits of the claim on an adequate and independent state ground. Y1st v. Nunnemaker, 501 U.S. 797, 801 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977). In this case, the Supreme Court, Kings County, denied defendant's claim on the basis of an adequate and independent state ground.
In his New York Criminal Procedure Law § 440.10 motion to vacate his judgment of conviction, defendant claimed, as he does now, that the trial court improperly failed to deliver a justification charge. The Supreme Court, Kings County, found that defendant's claim was procedurally barred from review because defendant had unjustifiably failed to raise the on-the-record claim on his direct appeal, See N.Y. Crim. Proc. Law § 440.10(2)(c). Thus, because the Supreme court denied the claim on the basis of an adequate and independent state ground, the claim cannot be reviewed by a federal court in a habeas proceeding. See Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990); Washington v. LeFevre, 637 F. Supp. 1175, 1176-77 (E.D.N.Y. 1986).
Defendant has not asserted any cause or prejudice that would excuse him from the effect of his procedural default. See Murray v. Carrier, 477 U.S. 478, 485 (1986).
Defendant's claim is meritless. The court's failure to deliver a justification charge was proper because defense counsel never requested that the charge be given, and the trial evidence did not support a defense theory that defendant was justified in shooting his wife in the head, and then exchanging gunfire with two police officers on a subway platform.
This claim has no merit.
E.
No other claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealibility is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may as already indicated, seek a certificate of appealibility from the Court of Appeals for the Second Circuit.
SO ORDERED.