Opinion
04 Civ. 3601 (DLC) (KNF).
December 24, 2008
REPORT and RECOMMENDATION
TO THE HONORABLE DENISE L. COTE, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Before the Court is Marcus Brown's ("Brown") pro se amended petition for a writ of habeas corpus made pursuant to 28 U.S.C. § 2254. In his original habeas corpus petition, Brown argues that his confinement by New York State is unlawful because: (1) the trial court violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution when it: (a) limited trial counsel's cross-examination of one of the victims, Juan Carlos Martinez ("Martinez"), regarding a pending attempted murder charge and a prior drug conviction; (b) limited trial counsel's questioning of Marvin Valentin ("Valentin"), a prosecution witness, about the details of his 1997 drug conviction; (c) sustained an objection by the prosecution to testimony by the petitioner concerning a shooting(s) by Martinez and Edwin Medina ("Medina"); and (d) instructed the jury to disregard the petitioner's testimony that he faced a life sentence if convicted; (2) the trial court erred when it: (a) declined to instruct the jury that, in considering his justification defense, it must assess the reasonableness of Brown's belief that the use of deadly force was necessary in light of his knowledge of Martinez's, Medina's and Valentin's respective reputations for violence, and (b) declined to instruct the jury that it could consider a justification defense to the charges of criminal possession of a weapon; (3) the trial court failed to provide a "meaningful response" to a query from the jury concerning the difference between the first-degree assault charges; and (4) the prosecutor committed misconduct: (a) at the grand jury proceedings, by failing to reveal that an inaccurate statement was made by a testifying detective, and (b) during the closing argument, by vouching for witnesses, "attacking the defenses the defendant presented," and characterizing Brown "as a liar."
Brown amended his habeas corpus petition to include the following additional claims: (1) the indictments were consolidated improperly; (2) trial counsel rendered ineffective assistance to him by: (a) urging a justification defense during summation, which contradicted Brown's testimony that he was innocent, (b) allowing Brown to testify in narrative form, which "negated [Brown's] ability to present his defense," (c) "pointing out," rather than discussing "vigorously," the inconsistent testimony by Detective Steven Pandolfelli ("Pandolfelli"), Detective Antonio Fernandez ("Fernandez"), and Assistant District Attorney Fionnaula O'Doherty ("O'Doherty"), (d) failing to object "properly" to the prosecution's "commingling of the evidence" by "us[ing] Martinez to establish that defendant own[ed] a dog," and (e) failing to object to the consolidation of the indictments; and (3) appellate counsel rendered ineffective assistance to him by failing to raise the following claims on direct appeal: (i) insufficient evidence existed in the record to support his conviction; and (ii) trial counsel provided ineffective assistance to him for the reasons stated above.
In his amended habeas corpus petition, Brown discusses, primarily, his ineffective assistance of appellate counsel claim; however, he also states he is asserting the "claims advanced in [his] [w]rit of [e]rror [c]oram [n]obis, and CPL § 440.10 [m]otion." Liberally construing Brown's amended petition to raise the strongest arguments they suggest, see Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994), the Court has determined to consider all the claims raised in Brown's writ of error coram nobis and CPL § 440.10 motion.
Respondent opposes the petitioner's application, which is analyzed below.
II. BACKGROUND
At approximately 3:00 a.m., on September 24, 1999, Augustine Campuzano ("Campuzano") was shot in the stomach, by Brown, on West 106th Street, in New York County. At approximately 2:30 a.m., on the following day, Martinez was shot in the groin, during a physical altercation between Martinez and Karen Ryer ("Ryer"), Brown's "common-law wife," on West 107th Street, a few blocks away from the location where Campuzano was shot. The petitioner admitted-to Pandolfelli, Fernandez and O'Doherty-shooting Campuzano and/or Martinez.
The petitioner was arrested and indicted for one of the shootings, in December 1999. Thereafter, the prosecution filed a superseding indictment, which charged the petitioner, in 13 counts, with offenses arising from the two shootings. The petitioner proceeded to trial by jury on January 18, 2001.
Before trial commenced, defense counsel raised the issue of severing the "two sets of charges, the two indictments," and noted that he had "made [his] record" previously. Defense counsel stated he believed, "because of the uniqueness of these two sets of charges, two shootings on separate nights, that it's going to be difficult not to have spillover and [a] cumulative effect." Brown interjected that severance was "in the interest of justice," and that "[t]here's nothing wrong with having two trials, especially if it's going to [eliminate] prejudice." The trial court ruled that severance was inappropriate.
Trial testimony demonstrated that, on September 24, 1999, Campuzano attempted to purchase drugs from a man, and Brown saw the man take Campuzano's money and walk away. Brown, who had a dog with him, informed Campuzano that the man who had taken his money was not a drug dealer. Campuzano became upset at Brown, and Brown sicced his dog on Campuzano. Campuzano kicked the dog, and Brown brandished a revolver. In response, Campuzano removed his belt and hit Brown's hand with it, causing Brown to drop the revolver. Thereafter, Campuzano displayed a box-cutter, and Brown retrieved the revolver and shot Campuzano. Campuzano stated that Brown stood approximately six feet from him at the time he was shot.
On September 25, 1999, Martinez had been drinking heavily, when Ryer approached him and spoke loudly about her desire to purchase drugs. Martinez told Ryer to "shut up"; Ryer "put her hand in [his] face"; the two began to fight; and Valentin entered the fight and kicked Ryer. As the fight continued, Martinez and Valentin saw that Brown had a gun, and Brown shot Martinez. Martinez was taken to a hospital, with injuries to his bladder and intestines, which required surgery. Martinez was hospitalized for approximately three weeks and required additional surgery two months after his initial hospitalization. While in the hospital, Brown telephoned Martinez and apologized for shooting him. Martinez testified that he knew of Brown based upon an incident in which Brown's dog had bitten someone. Defense counsel objected to this testimony, and the court instructed the jury to "disregard" Martinez's testimony.
On October 8, 1999, Pandolfelli, Fernandez and O'Doherty interviewed Brown. O'Doherty read Miranda warnings to Brown several times, and Brown did not request that an attorney be present to represent him. Fernandez, who was investigating the Martinez shooting, heard Brown admit to shooting Martinez. Brown informed Pandolfelli that Campuzano kicked his dog while holding a knife, and that Campuzano "shouldn't have kicked [his] dog." Brown told Pandolfelli that Campuzano "'deserved to get it,'" and, as he did so, Pandolfelli observed Brown "point as if he ha[d] a gun and . . . shoot[]."
On cross-examination, defense counsel inquired whether Pandolfelli recalled testifying before the grand jury that Brown had told him that Brown felt threatened during his encounter with Campuzano. Pandolfelli responded, initially, that he "d[id]n't think [he] did." However, defense counsel produced a document to refresh Pandolfelli's recollection, and Pandolfelli acknowledged he testified, before the grand jury, that Brown felt threatened by Campuzano. On cross-examination of O'Doherty, defense counsel elicited that she had provided Miranda warnings to the petitioner with regard to the Martinez shooting, but not the Campuzano shooting. O'Doherty explained that Brown did not inform her he did not wish to speak about the Campuzano shooting. Defense counsel impeached O'Doherty by confronting her with testimony she had given at a prior proceeding. At that proceeding, O'Doherty testified that Brown advised her he did not want to talk about Campuzano.
Some of the prosecution's witnesses testified about their criminal backgrounds. On direct examination, Martinez testified he: (a) was convicted for possessing a weapon in 1996; (b) sold drugs in 1999; and (c) had a "misdemeanor and a violation," and a pending felony charge. On cross-examination, defense counsel inquired whether Martinez had "commit[ted] the crime of attempted murder in the second degree by firing six shots-" and the trial court interrupted, "[n]o, no, no. Stop. You are not to give those details." Thereafter, Martinez asserted his Fifth Amendment privilege not to answer questions regarding the charges pending against him, and the trial court provided a cautionary instruction to the jury. Martinez testified, without objection, that he: (1) sold crack with Medina in 1997; (2) was arrested in 1997 for selling crack; (3) pleaded guilty to selling crack in 1998; (4) was sentenced to one year of imprisonment upon his guilty plea; and (5) continued to sell crack, once he was released from prison.
Valentin testified that he had several prior convictions, including: (1) criminal possession of a controlled substance, with intent to sell, as a juvenile; (2) assault, with a razor; and (3) possession of marijuana. Valentin also told the jurors he had an "open misdemeanor" case. On cross-examination, defense counsel elicited that, in 1997, Valentin had pleaded guilty to third-degree criminal possession of a controlled substance, with intent to sell, in connection with his sale of crack cocaine. However, the court sustained objections to the following questions posed to Valentin: (1) whether any money was found on his person when he was arrested for third-degree criminal possession of a controlled substance; (2) whether he sold crack cocaine with others; (3) whether he sold crack cocaine before or after the day he was arrested; and (4) by what methods he earned money, after he pleaded guilty.
After the prosecution rested, the trial court granted defense counsel's request for an ex parte hearing, at which defense counsel informed the court that Brown had inquired about "witnesses taking the Fifth Amendment." Defense counsel explained to the court that he had answered Brown's inquiry, and that he "would feel more comfortable if Mr. Brown took over at this point and went pro se." The trial court suggested that Brown testify in narrative form and noted that Brown would not be permitted to proceed pro se. Defense counsel conferred with Brown, and, thereafter, Brown proceeded to testify in narrative form.
During his narrative testimony, Brown told the jury he was testifying because he "d[id]n't feel in [his] heart that [the jurors] have the reason enough to acquit [him] of all charges." Brown stated he was "a criminal basically all [his] life," but he did not think anyone "should be shot or hurt," and he was "not a violent person." Brown recalled that he saw Campuzano try to purchase drugs from a man, who took Campuzano's money and walked away. Brown explained that he told Campuzano the man was not a drug dealer. Thereafter, Campuzano "pulled out a gun," Brown's pitbull "clawed" Campuzano's hand, and Campuzano dropped the gun. Next, Campuzano removed his belt, displayed a knife, and "ke[pt] coming at [Brown]." Brown told the jury "if you find me guilty on any charge[,]. . . . [e]ven the lesser one, I go to jail for life." The court interrupted Brown, but Brown continued, "[t]hat's the truth. That's the part they don't want you to know. . . ." Brown advised the jurors that "[t]he original person [the police] were looking for was a six feet four male black, dark complexion," to which a sustained objection was made, and Brown commented "[i]t's in the records."
Brown recounted for the jurors that, on the night of September 25, 1999, he and Ryer saw a group of men on the street; and Martinez and Medina were among the group of men. Brown stated Martinez and Medina were "the biggest drug dealers," were known to "have shot people," and Brown had "seen them shoot at people," to which an objection was sustained. Brown added that "Martinez has a case for shooting at somebody's head six times," to which an objection was sustained. Brown alleged Martinez asked Ryer a question, and she "turned her back to him." Thereafter, Martinez grabbed Ryer's arm, and Ryer asked Martinez whether she had asked him for anything. In response, Martinez punched Ryer's face and Valentin kicked her. According to Brown, Ryer fell to the ground, and he was unaware of what to do because "they are killers" and "[t]hey [were] beating the shit out of her." Brown recalled that "[a] shot rang out," hitting Martinez, and he identified Ryer as the shooter.
Brown testified that, after he was arrested and detained, he spoke with detectives and told them that, ordinarily, "someone that's defending his wife, he has a right to do that," and that he was facing "[spending] the rest of [his] life [in prison]." Despite the sustained objections to Brown's testimony about his exposure to incarceration if he were to be convicted, Brown reiterated that he would "go to jail for the rest of [his] life." Brown informed the jurors that, "[e]verybody that got on the stand, [him]self included, has lied." Thereafter, the following exchange occurred:
The Witness [Brown]: My life is in your hands.
The Court: Mr Brown, stop. Stop right there!
The Witness: I am not the type of person that commits crimes.
The Court: Mr. Brown? Mr. Brown —
The Witness: I took part but I did not do what they said I did.
The Court: Jurors disregard.
The Witness: I did not do what they said I did.
The Court: Mr. Brown, I'll have you removed.
The Witness: That's the truth, and it's the system that is going to crush me.
The Court: Jurors, file out to the jury room. This is inappropriate.
Following this exchange, the prosecution and defense counsel moved to have Brown's entire testimony stricken from the record. The trial court denied the respective motions. Instead, it instructed the jurors as follows:
Now this is an unusual situation where somebody has gotten up on the witness stand and rode roughsho[d] over th[e] rules, and in spite of my asking him to stop, stated to you certain issues and facts or allegations or feelings or emotions that don't meet those standards and are unworthy of your consideration.
It's difficult, at this point, for me to par[s]e those out, but let me just say, statements that are [a]n appeal to your mercy, to your emotion, statements that are self-serving, statements that are pure hearsay or mere allegations, statements that relate to irrelevant facts, I urge you again to disregard, as I pointed out as we went along.
You're to consider this witness' testimony to the extent it bears on the relevant facts of this case as to what happened on the two nights in question, as it bears on the statements that have been put into evidence in this case and as it may bear on this defendant's credibility.
During cross-examination of the petitioner, the prosecution inquired whether Ryer had a loaded gun while she was being attacked, and Brown responded he "didn't know." The prosecution also inquired whether Brown recalled testifying that Ryer had shot Martinez, and Brown answered: "[i]f it's my testimony, it's a slip. I don't recall. I might have to retract that." The following exchange ensued:
THE WITNESS [BROWN]: Can it incriminate Karen [Ryer]?
THE COURT: That's not a question. Is it your testimony that she shot him?
THE WITNESS: Mr. Wasserman [Brown's attorney] —
THE COURT: Just answer the question.
THE WITNESS: I can ask my lawyer for advice.
THE COURT: No.
A[NSWER]: I don't recall, ma'am.
Q[UESTION]: So then who shot him?
A[NSWER]: I know it wasn't me.
After the defense rested, the parties discussed the jury instructions with the court. Defense counsel requested that a justification instruction be given, because "the jury can believe a witness's testimony in whole or in part, and if they feel that a witness has lied about any portion, they can disregard that portion of his testimony, as your Honor would instruct them, but accept the other portion of the testimony." The court granted that request. Brown moved to proceed pro se, and noted that he and his attorney had a "difference of opinion as to strategy." Brown's motion was denied because, as the court explained, Brown had "demonstrated [his] inability to comply with the rules of this Court and [his] total lack of understanding as to the law."
During his closing argument, Brown's counsel explained to the jury that "the judge will instruct you that it is proper that the defense raise whatever defenses it has even if inconsistent," and, therefore, if the jury found that Brown was the shooter, the jury should consider the defense of justification. In this regard, counsel argued that Brown "reacted in self-defense," on the night Martinez was shot, and "[i]t was the only thing he could do to stop [Ryer from being] kill[ed]." Brown's counsel argued the Martinez shooting was "justifiable." He also argued that: (1) O'Doherty's testimony demonstrated Brown did not receive Miranda warnings regarding his statements about Campuzano. Rather, he was only warned about his rights in relation to his statements respecting Martinez; (2) Valentin, Medina and Martinez had sold drugs, drank and smoked marijuana together, and "Valentin lied [when he testified] he hasn't sold drugs since the time he was arrested;" and (3) Martinez was "a liar" and his testimony "d[id]n't make any sense."
For its part, the prosecution urged the jury to determine who had testified truthfully: Brown "or everybody else who testified in this case." The prosecutor argued "[t]here was one moment that made it very clear that [Brown] was not telling the truth, . . . and that's when he changed his story about who shot [Martinez]." The prosecutor told the jurors Martinez, Medina and Valentin "are just not nice people"; "they have criminal records"; and "[t]hey are not people that you would approve of." The prosecutor explained that these witnesses "admitted to hitting," "punching," and "kicking [a woman]," and they "are not friends of law enforcement." Despite these characteristics, the prosecutor argued that Martinez's, Medina's and Valentin's version of the events was more credible than Brown's. Accordingly, the prosecution contended the state had proved its case against Brown, beyond a reasonable doubt.
At the conclusion of the parties' final statements to the jurors, the trial judge instructed them, in relevant part, that their role was to determine whether the defendant was guilty, the court would impose punishment, and that the jurors need "not [] concern [them] selves with the question of punishment." The court continued:
Now the defendant, in his testimony, improperly referred to this issue. In fact, the defendant made certain suggestions or arguments as to what the punishment may be.
I instruct you to disregard his comments and I instruct you further that his comments are in error and you may not assume the accuracy of any of what he said with regard to punishment, and indeed, only if and when this defendant would be found guilty would that issue be open for litigation, and I would have to make a determination and I would have to decide under what specific provisions of the law the punishment would be applied.
Turning to the issue of self-defense, the trial judge explained that this defense applied only to the attempted murder and assault charges "and is not relevant to the charges involving criminal possession of a weapon in the second and third degrees." The trial judge also instructed, with regard to self-defense:
[O]ne who reasonably believes that someone is about to use deadly force upon them need not wait until he is struck. He may in such circumstances use deadly physical force defensively but only if he's justified in reasonably believing that the other person is about to do so. . . .
***
You must review all the evidence and decide what took place before and during the encounter. . . . In deciding what this defendant reasonably believed, the law employs two different tests.
The first is the subjective test as to this defendant. Here, you figuratively put yourself in the shoes of the defendant and consider how the situation appeared to him. Then you decide whether this defendant believed that the use of deadly physical force was necessary to defend himself or a third party from the imminent use of deadly physical force. If the evidence does satisfy you that the defendant so believed, then you go to the second test which is the objective test: Was the defendant's belief reasonable under all of the circumstances?
After the jury began deliberating, it submitted several notes to the court, including, inter alia, a request that the court provide a transcript of its instruction on the "'definitions of first and second degree[] [assault],'" and its instructions on "'all ten counts against the defendant.'" In response, the court declined to provide the jury a transcript of its instructions. Instead, it informed the jury of the following:
[Y]ou have a charge of assault in the first degree with regard to Carlos Martinez and attempted assault in the first degree with regard to Mr. Campuzano. Assault in the first degree, what the People must prove as to that charge is that on or about September 25, 1999, in the County of New York, the defendant caused serious physical injury to Carlos Martinez by means of a deadly weapon and, two, that the defendant did so with intent to cause serious physical injury to him. Those are the two elements. The attempted assault in the first degree would be the very same elements except the preface that the defendant attempted to cause serious physical injury to Mr. Campuzano by means of a deadly weapon and that he did so with the intent.
Now, there is the alternative assault in the first degree. That's count three. And that count is only to be considered by you with regard to Mr. Martinez as an alternative to the assault to carry a requisite of intent. This is the assault under the theory of recklessness. What I told you was, if you find him not guilty on one and two, those two intentional crimes, you are being asked to consider an alternative crime, and that is assault under the theory of recklessness.
Let me define those three elements that come into play with regard to that assault in the first degree. That is, first, that on that date, September 25, 1999, in the County of New York, the defendant caused serious injury to Carlos Martinez, that the defendant did so by recklessly engaging in conduct which created a grave risk of death to Carlos Martinez and, lastly, that the defendant engaged in such conduct under circumstances that evidence a depraved indifference to human life.
Following additional jury deliberations, another note was generated by the jury. The trial judge responded to it-without reading it into the record-by stating, "with regard to counts two and three, while they may appear on the verdict sheet to be the same because it merely states assault in the first degree, I remind you that count three is on a totally different theory. It's on a theory that you only consider if in fact you've acquitted of counts one and two." Thereafter, the jury sent additional notes to the court requesting to: (1) hear a portion of Brown's testimony; (2) hear a "readback" of Campuzano's testimony and the definition of self-defense; and (3) be informed of the consequence of failing to reach a verdict on one count.
On March 5, 2001, the jury returned a verdict convicting Brown for first-degree assault (based on count three's recklessness theory), second-degree criminal possession of a weapon, and third-degree criminal possession of a weapon, two counts. Thereafter, Brown was sentenced, as a persistent-violent-felony offender, to concurrent indeterminate terms of twenty years to life imprisonment on each count.
III. PROCEDURAL HISTORY
On direct appeal, Brown raised all the claims made in his original habeas corpus petition. In October 2002, the New York State Supreme Court, Appellate Division, First Department, found Brown's contentions regarding the limitations placed on trial testimony by the court were unpreserved for appellate review, and declined to review them in the interest of justice. See People v. Brown, 298 A.D.2d 176, 177, 748 N.Y.S.2d 244 (1st Dep't 2002). The Appellate Division noted that, even if it were to review these claims, it would find that reasonable limits were imposed on Brown's elicitation of evidence and "ample latitude [was provided] in which to impeach prosecution witnesses and present his justification defense." Id. Brown's challenge to the trial court's justification instruction was found meritless, since the instruction to the jury "conveyed the proper legal principles." Id. The Appellate Division found Brown's remaining contentions unpreserved for appellate review, and the court declined to review them in the interest of justice. It noted that, even if it were to review those claims, they would be rejected. See id. The petitioner applied for leave to appeal to the New York Court of Appeals. On December 20, 2002, that application was denied. See People v. Brown, 99 N.Y.2d 556, 754 N.Y.S.2d 208 (2002).
After filing a timely habeas corpus petition, Brown moved for an order staying adjudication of his petition so he could exhaust available state remedies. A report, by the undersigned, recommended that Brown's motion be granted, see Brown v. Artus, 04 Civ. 3601, 2005 U.S. Dist. LEXIS 6411, *7-8 (S.D.N.Y. Apr. 4, 2005), and your Honor adopted this recommendation.
In December 2005, Brown filed a New York Criminal Procedure Law ("CPL") § 440.10 motion, in which he argued his trial counsel rendered ineffective assistance to him by failing: (1) to object "properly [] to [the] consolidation of [the] indictments"; and (2) to object to the resulting "commingling" of the evidence regarding the two shootings. The New York State Supreme Court, New York County, denied Brown's motion, finding that Brown failed to raise these claims on direct appeal and was, therefore, "precluded from successfully doing so in a 440.10 motion." The court explained that, even if Brown had raised these issues on direct appeal, it would have been to no avail, because the claims were meritless. The petitioner applied for leave to appeal to the New York State Supreme Court, Appellate Division, First Department, and, in February 2007, leave was denied.
In July 2007, Brown filed an application for a writ of errorcoram nobis in the Appellate Division, asserting his trial and appellate counsel rendered ineffective assistance to him and, further, that the trial court erred in consolidating the indictments. The Appellate Division denied Brown's application. Thereafter, Brown applied for leave to appeal to the New York Court of Appeals. On May 7, 2008, that application was denied.See People v. Brown, 10 N.Y.3d 860, 860 N.Y.S.2d 486 (2008).
After exhausting state remedies with respect to his ineffective assistance of trial and appellate counsel claims, and his challenge to the consolidation of the indictments, Brown filed an amended habeas corpus petition raising these claims in addition to those raised in his original petition.
III. DISCUSSION
Trial Court's Evidentiary Rulings
"[A] trial court may . . . impose reasonable limits on defense counsel's inquiry into the potential bias of a prosecution witness, to take account of such factors as 'harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that [would be] repetitive or only marginally relevant.'" Olden v. Kentucky, 488 U.S. 227, 232, 109 S. Ct. 480, 483 (1988). Traditionally, cross-examination provides an opportunity for counsel to impeach or discredit a witness. See Davis v. Alaska, 415 U.S. 308, 316, 94 S. Ct. 1105, 1110 (1974). "One way of discrediting the witness is to introduce evidence of a prior criminal conviction of that witness," which may "afford the jury a basis to infer that the witness' character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony." Id. "Murder generally is not a crime of dishonesty," and does not reflect upon a witness' truthfulness. United States v. Flaharty, 295 F.3d 182, 191 (2d Cir. 2002).
A. Limitation on Martinez's and Valentin's Testimony
The trial court's limitation on the evidence regarding Martinez's pending attempted murder charge, and Brown's testimony regarding a shooting by Martinez and Medina, was proper, since nothing in the record shows the alleged shooting by Martinez or Medina was probative of either witness' dishonesty or untruthfulness. See Davis, 415 U.S. at 315-16, 94 S. Ct. at 1110;see also Flaharty, 295 F.3d at 191. Additionally, evidence regarding the criminal histories of both Martinez and Medina was admitted into the trial record; therefore, "there was ample other material through which [the] defendant[] could test [their] credibility and expose any bias." Flaharty, 295 F.3d at 191. Insofar as the petitioner argues that his counsel's cross-examination of Martinez was curtailed, improperly, with regard to a "prior drug conviction," the record refutes this claim and demonstrates that Martinez testified, on cross-examination and without objection, that he: (i) was arrested in 1997 for selling crack; (ii) pleaded guilty to selling crack in 1998; and (iii) was sentenced to one year imprisonment, upon his guilty plea. The record reveals further that no limitation was placed upon the elicitation of this testimony.
Brown's claim that the trial court limited improperly Valentin's testimony concerning his drug conviction is not supported by the record. It reveals Valentin testified that, in 1997, he entered a guilty plea to one count of third-degree criminal possession of a controlled substance with intent to sell. Objections were sustained to questions pertaining to: (i) the quantity of money Valentin possessed when he was arrested; (ii) the persons, if any, with whom he sold crack; and (iii) the length of time he had sold crack; however, this information was not relevant to the truthfulness of this witness. See Davis, 415 U.S. at 315-316, 94 S. Ct. at 1110.
B. Limitation on Brown's "Sentence" Testimony
"Where the jury is permitted to speculate concerning a defendant's possible punishment, a jury cannot properly perform th[e] function" of "determin[ing] guilt or innocence based upon an impartial consideration of the evidence, unswayed by emotion, fear or prejudice." United States v. Cook, 776 F. Supp. 755, 757 (S.D.N.Y. 1991) (citing Taylor v. Kentucky, 436 U.S. 478, 483-85, 98 S. Ct. 1930, 1933-35). Brown's challenge to the trial court's instruction, that the jury disregard his testimony respecting his sentence exposure, is meritless. Where a court fails to instruct a jury of its limited function: to determine guilt or the lack thereof — and to avoid considering the issue of sentencing — a basis for finding reversible error may well exist.See, e.g., Rogers v. United States, 422 U.S. 35, 40, 95 S. Ct. 2091, 2095 (1975) (finding the trial judge erred in, inter alia, permitting the jury to render a verdict coupled with a request that the court exercise "extreme mercy" in sentencing the defendant, and finding that the court should have instructed "that the jury had no sentencing function and should reach its verdict without regard to what sentence might be imposed");United States v. Glick, 463 F.2d 491, 494 (2d Cir. 1972) (finding that the prejudice caused by the court's failure to instruct the jury in the presence of the defendant was compounded by the "total failure to make clear to the jury that its function was to decide guilt or innocence and that sentencing was the judge's province and his alone").
Instructions to the Jury
A habeas corpus petitioner alleging an error in a jury instruction must establish not only that the instruction is erroneous but that the "ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400 (1973); see also Henderson v. Kibbe, 431 U.S. 145, 154, 97 S. Ct. 1730, 1736-37 (1977) ("The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack on the constitutional validity of a state court's judgment is even greater than the showing required to establish plain error on direct appeal."). A petitioner's burden is "especially heavy" where the alleged error is the failure to instruct the jury, since an omission is "less likely to be prejudicial than a misstatement of the law." Henderson, 431 U.S. at 155, 97 S. Ct. at 1737. "[A] finding that the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law is the first step in the determination whether that error violated the petitioner's federal due process rights."Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001).
A. Justification Defense and "Reputations for Violence"
Insofar as Brown alleges the trial court erred in declining to instruct the jury that it must consider Martinez's, Medina's and Valentin's "reputations for violence" in assessing Brown's justification defense, even assuming, arguendo, the omission was erroneous, no indication exists that Brown suffered prejudice as a result of this omission. The trial court's justification instruction explained that the jury "must review all the evidence and decide what took place before and during the encounter." In addition, the jury was told: "figuratively put yourself in the shoes of the defendant and consider how the situation appeared to him," in order to determine whether the use of deadly force was appropriate. These instructions permitted the jury to consider Brown's testimony that, at the time of the Martinez shooting, he believed Martinez and Valentin were "killers." Though these instructions were not explicit in informing the jury to consider anyone's reputation for violence, the instructions did not foreclose such a consideration, and it is not clear the jury refrained from considering Brown's testimony, that Martinez and Valentin were "killers," in reaching its verdict.
B. Justification Defense and Criminal Possession of a Weapon Charges
Under New York law, "[j]ustification based on self-defense . . . pertains only to the use of physical force. . . . It does not apply to a crime based on the possession of a weapon. . . ." People v. Pons, 68 N.Y.2d 264, 265, 508 N.Y.S.2d 403 (1986); see also Jackson v. Edwards, 404 F.3d 612, 626 (2d Cir. 2005) ("[u]nder New York law, justification under [PL] Section 35.15 is not a defense to second degree criminal possession of a weapon"). While "the defense of justification excuses the use of physical force in the context of a homicide, it is the act of possessing a weapon with intent to use it unlawfully, not the actual use of the weapon, that is at the heart of a weapons possession offense." Jackson, 404 F.3d at 626. "Thus, 'it does not follow that because [the] defendant was justified in the actual shooting of the weapon under the particular circumstances existing at that moment, he lacked the intent to use the weapon unlawfully during the continuum of time that he possessed it prior to the shooting.'" Id. (quoting Pons, 68 N.Y.2d at 267-68, 508 N.Y.S.2d at 405).
In the present case, the trial court concluded that Brown was not entitled to a justification jury instruction respecting the weapons possession charges, since possession and intent to use a weapon unlawfully are elements not negated by a finding that Brown used justifiable force in firing his weapon. See id.; see also Pons, 68 N.Y.2d at 265-68, 508 N.Y.S.2d at 403-05. Therefore, it cannot be said that Brown was "erroneously deprived of a jury instruction to which he was entitled under state law," nor can it be said that the omission of such a jury instruction "violated the petitioner's federal due process rights." Davis, 270 F.3d at 123.
C. "Meaningful Response" to Jury Note
Brown's claim that the trial court erred in failing to give the jury "requested information" fails, since the jury was instructed about the elements of the two first-degree assault counts based on intent, and the third, alternative, first-degree assault count, based upon a theory of recklessness. In the court's response to the second jury inquiry about the first three counts of the indictment, the court explained that the first and second first-degree assault counts were based upon a theory different from that of the third first-degree assault count. Any failure by the trial court to give another, or a more elaborate, instruction did not "infect[] the entire trial" or undermine the integrity of Brown's conviction, since the instructions given by the trial court described the elements of the first-degree assault counts accurately, and the jury did not request additional instructions on these counts in its subsequent inquiries of the court. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482 (1991) (internal quotations and citations omitted). In addition, a jury is presumed to follow the instructions of the trial judge, see Weeks v. Angelone, 528 U.S. 225, 234, 120 S. Ct. 727, 733 (2000), and Brown has not alleged that the trial court provided an erroneous instruction on the elements of first-degree assault. Based on the record, as a whole, granting Brown habeas corpus relief, premised on his challenges to the jury instructions, would be inappropriate.
Prosecutorial Misconduct A. Misconduct During Summation
The standard of review, on a writ of habeas corpus, for a claim of prosecutorial misconduct during summation, is whether the prosecutor's comments "[constitute] more than mere trial error, and were instead so egregious as to violate the defendant's due process rights." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (citingDonnelly v. DeChristoforo, 416 U.S. 637, 647-48, 94 S. Ct. 1868, 1873-74). In determining whether "the prosecutor's conduct affected the fairness of the trial," United States v. Young, 470 U.S. 1, 11, 105 S. Ct. 1038, 1044 (1985), so as to warrant reversal, courts may look to: "the severity of the misconduct, the curative measures taken, and the certainty of conviction absent the misconduct," United States v. Rosa, 17 F.3d 1531, 1549 (2d Cir. 1994). "It is well-settled that both the prosecution and defense are entitled to broad latitude in the inferences they may suggest to the jury during closing arguments, provided they do not misstate the evidence, refer to facts not in evidence, or express counsel's personal belief as to guilt or innocence."United States v. Smith, 778 F.2d 925, 929 (2d Cir. 1986) (internal quotations and citations omitted); see also Young, 470 U.S. at 7-9, 105 S. Ct. at 1042-43.
Insofar as Brown alleges the prosecution committed misconduct by characterizing him as a "liar," during its summation, the record reveals that the purpose of the prosecutor's comments on the truthfulness of the petitioner was to remind the jury it would have to decide whether the petitioner, or all the other witnesses, had told the truth, and to argue Brown's testimony, that Ryer had shot Martinez, appeared to be untruthful, since Brown later altered this testimony. The comments by the prosecutor did not misstate the evidence presented at trial and, therefore, were not improper.
Brown's claim-that the prosecution committed misconduct, during its summation, by vouching for witnesses and discrediting the arguments raised by the defense-is not supported by the record. The record reveals that the prosecutor commented on the negative characteristics of Valentin, Medina and Martinez, but argued their testimony presented a single, cohesive version of events that was more credible than Brown's testimony. The prosecutor's statements were within the "broad latitude" afforded to closing arguments, and did not "misstate the evidence, refer to facts not in evidence, or express counsel's personal belief as to guilt or innocence," so as to render the arguments improper.Smith, 778 F.2d at 929; see also Young, 470 U.S. at 7-9, 105 S. Ct. at 1042-43. In addition, the prosecutor's argument that the testimony of Valentin, Medina and Martinez was more credible than Brown's was likely in response to defense counsel's summation, during which counsel described Valentin's testimony as "absurd," and Martinez's testimony as "not true." See, e.g., United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998) ("where the defense summation makes arguments and allegations against the government, the prosecutor may respond to them in rebuttal"). The record does not support a finding that the prosecutor committed misconduct since: (1) the misconduct, if any, was not severe; (2) the defense did not seek from the court any "curative measures"; and (3) given the nature of the evidence presented at trial, it appears the same jury verdict would have been reached regardless of the comments made during the prosecutor's summation. See Rosa, 17 F.3d at 1549.
B. Misconduct During Grand Jury Proceedings
Improper Consolidation of Indictments
See United States v. Mechanik475 U.S. 66 70see also Lopez v. Riley865 F.2d 3032Mechanik Estelle502 U.S. at 67-68112 S. Ct. at 480FifthUnited States v. Lane474 U.S. 438446106 S. Ct. 725730
Under New York law, indictments may be consolidated and offenses joined when, "[e]ven though based upon different criminal transactions, . . . such offenses are defined by the same or similar statutory provisions and consequently are the same or similar in law." CPL § 220.20(2)(c) (McKinney 2001). Pursuant to CPL § 220.20(4):
When two or more indictments against the same defendant . . . charge different offenses of a kind that are joinable in a single indictment pursuant to subdivision two, the court may, upon application of either the people or a defendant, order that such indictments be consolidated and treated as a single indictment for trial purposes. If such indictments, in addition to charging offenses which are so joinable charge other offenses which are not so joinable, they may nevertheless be consolidated for the limited purpose of jointly trying the joinable offenses.
The substance of Brown's claim is that the trial court's determination to consolidate two indictments deprived him of a fair trial, because the evidence related to each shooting was "commingled" improperly and the prosecution was "relieved . . . of its burden of proving every element of [the] charged crimes." As Brown fails to point to any portion of the record to support these claims, and the trial court's consolidation of the indictments was a proper exercise of its discretion, Brown has not shown that the court's determination to consolidate the indictments rendered his trial unfair fundamentally. See CPL § 220.20(2)(c) (McKinney 2001); § 220.20(5) (McKinney 2001) ("A court's determination of an application for consolidation [under § 220.20(4)] is discretionary").
Ineffective Assistance of Trial Counsel
To prevail on an ineffective assistance of counsel claim, a petitioner must show that: (1) counsel's performance fell below an objective standard of reasonableness; and (2) there is a reasonable probability that, but for counsel's error(s), the outcome of the proceeding would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694, 104 S. Ct. 2052, 2064-65, 2068 (1984). "A reasonable probability is a probability sufficient to undermine confidence in the outcome."Id. at 694, 104 S. Ct. at 2068. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S. Ct. at 2065.
A. Contradictory Defenses
"The New York courts have allowed defense counsel to present both an innocence and a justification defense." Fleurant v. Duncan, No. 00-CV-7647, 2003 WL 22670920, at *11 (E.D.N.Y. Nov. 7, 2003) (citing People v. Steele, 26 N.Y.2d 526, 528-29, 311 N.Y.S.2d 889 (1970). The justification argument made by Brown's counsel, during his summation, notwithstanding Brown's testimony that he was innocent and had not participated in the shootings, does not establish that ineffective assistance was rendered to Brown by his trial counsel. Defense counsel's discussion of a justification defense was objectively reasonable, since it was possible that the jury might not credit Brown's testimony — as even Brown testified that he had lied while testifying — and Brown's counsel reduced any prejudice that may have flowed from the proffer of contradictory defenses by noting, during his summation, that it was "proper that the defense raise whatever defenses it has even if inconsistent." The Court finds that defense counsel's discussion of the justification defense, during summation, was not prejudicial to the defense and does not "undermine confidence in the outcome" of the trial.
B. Brown's "Narrative" Testimony
"In the representation of a client, a lawyer shall not: . . . [k]nowingly use perjured testimony or false evidence," or "assist the client in conduct that the lawyer knows to be illegal or fraudulent." Disciplinary Rule ("DR") §§ 7-102(a)(4), (a)(7), codified at 22 N.Y.C.R.R. §§ 1200.33(a)(4)(a)(7). "When examining attorney conduct, a court must be careful not to narrow the wide range of conduct acceptable under the Sixth Amendment so restrictively as to constitutionalize particular standards of professional conduct and thereby intrude into the state's proper authority to define and apply the standards of professional conduct applicable to those it admits to practice in its courts."Nix v. Whiteside, 475 U.S. 157, 165, 106 S. Ct. 988, 993 (1986).
The record demonstrates that: (1) Brown's trial counsel did not "feel comfortable" conducting a direct examination of Brown after informing him of the limitations on his ability to invoke the Fifth Amendment privilege respecting incidents for which he was on trial; (2) Brown's trial counsel requested an ex parte audience with the court to inform it that he would prefer if Brown proceeded pro se rather than continue as Brown's counsel; (3) the trial court suggested that, if Brown wished to testify, he do so in narrative form, and denied the request that Brown be allowed to proceed pro se; and (4) Brown's trial counsel focused primarily on the defense of justification, in his closing argument, despite Brown's testimony that he did not shoot Campuzano or Martinez. Brown maintains his counsel rendered ineffective assistance to him, because he refrained from assisting Brown in testifying, by having Brown testify in narrative form. Brown is wrong. See DePallo v. Burge, 296 F. Supp. 2d 282, 290-92 (E.D.N.Y. 2003) (finding that counsel's elicitation of the petitioner's testimony in narrative form did not constitute ineffective assistance of counsel, since this course enabled counsel to "fulfill[] his ethical obligations to the court and to his client").
Furthermore, Brown's claim, that counsel was ineffective for allowing him to testify in narrative form because he did not receive assistance in placing, into the trial record, the "original description" of Campuzano's shooter, is to no avail. This is so because Brown cannot show that the outcome of his trial is unreliable because this information was not received in evidence or that he was prejudiced by counsel's performance. See Strickland, 466 U.S. at 692, 104 S. Ct. at 2066-67. The jury's verdict demonstrates it was not persuaded by Brown's testimony that he was not involved in Campuzano's shooting, and, instead, credited the testimony and other evidence presented on behalf of the prosecution.
Brown also challenges his trial counsel's performance because counsel did not allow him to make trial-strategy decisions. However, "a petitioner cannot prevail on a claim of ineffective assistance [of counsel] merely because he disagrees with his counsel's strategy." Restrepo v. United States, 533 F. Supp. 2d 359, 366 (S.D.N.Y. 2008). Brown has not described which "strategy decisions" his counsel made that were unpalatable to him. To the extent Brown may be referring to counsel's decision to have Brown testify in narrative form, the record demonstrates that Brown conferred with his trial counsel, after the ex parte hearing, during which the trial judge suggested Brown testify in narrative form, and before counsel informed the trial court that Brown would testify in narrative form. Brown did not indicate, on the record, that he did not wish to testify in narrative form. Inasmuch as Brown does not: (a) specify the strategic decisions made by counsel with which he takes umbrage; and (b) show that counsel's decisions were prejudicial to Brown's presentation of a defense, granting habeas corpus relief on this ground is not appropriate.
C. Failure to "Vigorously" Raise Inconsistencies in Testimony
Brown claims his trial counsel was ineffective for merely "point[ing] out [and] not pursu[ing] vigorously" inconsistent testimony regarding what Brown characterizes as: "the involuntary statement." Brown faulted his counsel for failing to utilize the record generated at the "Grand Jury, Huntley Hearing, and trial" to demonstrate the testimony of Pandolfelli, O'Doherty and Fernandez was not consistent.
The record establishes that, during Pandolfelli's and O'Doherty's respective cross-examinations, defense counsel utilized their prior testimony to impeach each witness. For example, despite Pandolfelli's direct testimony suggesting Brown was an aggressor, defense counsel refreshed Pandolfelli's recollection that, while testifying before the grand jury, he stated that Brown indicated he felt threatened by Campuzano. Similarly, counsel was able to have O'Doherty acknowledge, contrary to her direct testimony, that Brown informed her he did not want to speak about the Campuzano incident. Thus, Brown's claim, that his counsel was ineffective for failing to utilize grand jury or pre-trial hearing transcripts to emphasize inconsistent testimony by O'Doherty and Pandolfelli, is not supported by the record.
In addition, Brown's counsel was not ineffective for failing to elicit inconsistent testimony from Fernandez regarding the Campuzano shooting, since Fernandez testified that he investigated the Martinez shooting only. Moreover, since O'Doherty and Pandolfelli testified regarding the Campuzano shooting, any testimony by Fernandez respecting the Campuzano shooting would have been cumulative and, thus, the failure to elicit it is harmless. See Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S. Ct. 1431, 1438 (1986) (finding that the denial of a defendant's opportunity to impeach a witness is subject to harmless-error analysis, and that such analysis involves consideration of factors including: the importance of the witness' testimony, and whether the testimony was cumulative). Brown has failed to show that the outcome of his trial was rendered unreliable because his trial counsel's performance, as a cross-examiner, was so poor that it was objectively unreasonable. See Strickland, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064-65, 2068.
D. Failure to Object "Properly" to Martinez's Testimony
Brown's claim that his trial counsel rendered ineffective assistance to him, by failing to object "properly" to Martinez's testimony that Brown had a dog that had bitten someone, is meritless. The record demonstrates that Brown's counsel objected to this testimony, and the trial court instructed the jury to disregard Martinez's testimony. Inasmuch as Brown's counsel objected successfully to the testimony identified by Brown as offensive, it is not clear what more could have been done in order to satisfy Brown that a proper protest was made.
E. Failure to Object to Consolidation of Indictments
Insofar as Brown seeks to raise a claim, in his amended habeas corpus petition, that his trial counsel was ineffective for failing to object to the consolidation of the indictments, this claim is refuted by the record. Prior to the commencement of the trial, defense counsel argued against consolidation and provided a lengthy description of the bases for his objections to consolidation; however, the court ruled against him. Additionally, Brown interjected and argued against consolidation; however, the court was not persuaded to alter its ruling. Based on the record of the trial-court proceedings, Brown's claim, that his trial counsel provided ineffective assistance to him, because counsel failed to object to the consolidation of the indictments, is meritless.
Ineffective Assistance of Appellate Counsel
The Strickland test applies to claims of ineffective assistance of appellate counsel. See Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764 (2000).
A. Insufficient Evidence to Support his Conviction
When challenging the sufficiency of the evidence underlying a state criminal conviction, a petitioner bears a heavy burden of demonstrating that, "upon the record evidence adduced at the trial[,] no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 324, 99 S. Ct. 2781, 2791-92 (1979); United States v. Soto, 716 F.2d 989, 991 (2d Cir. 1983). When faced with a record "of historical facts that supports conflicting inferences [a federal habeas corpus court] must presume-even if it does not affirmatively appear in the record-that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326, 99 S. Ct. at 2793. A reviewing court must resolve all issues of credibility in favor of the jury's verdict. See United States v. Tyler, 758 F.2d 66, 68 (2d Cir. 1985).
New York Penal Law (" PL") § 120.10(3) provides that, a person is criminally culpable for first-degree assault when, "[u]nder circumstances evincing a depraved indifference to human life, he recklessly engages in conduct which creates a grave risk of death to another person, and thereby causes serious physical injury to another person." "Serious physical injury" is defined as "physical injury which creates a substantial risk of death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." PL § 10.00(10) (McKinney 2001). Brown was convicted on one count of first-degree assault, in relation to the Martinez shooting. The trial record, viewed in the light most favorable to the prosecution, would permit a reasonable fact finder to conclude, beyond a reasonable doubt, that Brown was guilty for first-degree assault because all the elements of that crime were proven through witness testimony. Martinez testified that, on September 25, 1999, while he and Valentin tussled with Ryer, he saw Brown holding a gun; heard a gunshot; and realized he had been shot. Martinez also testified that he was hospitalized for three weeks and underwent surgeries to address his injuries. Valentin testified that Brown shot Martinez. Fernandez testified that Brown admitted to participating in the Martinez shooting. Taken together, this testimony supports a finding that, by shooting a gun at Martinez, while he and Valentine struggled with Ryer, Brown engaged in conduct recklessly that created a grave risk of death, and caused serious physical injuries to Martinez, requiring that he be hospitalized for several weeks and undergo an additional surgery months after the shooting incident.
PL § 265.02(4) provides that a person is criminally culpable for third-degree criminal possession of a weapon when he "possesses any loaded firearm" and "such possession [does not] take place in such person's home or place of business." Brown was found guilty for violating PL § 265.02(4) on September 25, 1999. As noted above, the jury heard testimony that, on September 25, 1999, Brown was seen holding a gun, while he was not in his own home or place of business, which he used to shoot Martinez. Therefore, the trial record, viewed in the light most favorable to the prosecution, supports the jury's guilty verdict on that charge. A second count of third-degree criminal possession of a weapon, for which Brown was found guilty, charged that Brown violated § 265.02(4) on September 24, 1999. At trial, the jury learned that, on September 24, 1999, Brown possessed a loaded firearm, while he was not inside his own home or place of business, and shot Campuzano with it. These facts, considered in the light most favorable to the prosecution, established that Brown possessed a loaded gun outside of his home or business, in violation of PL § 265.02(4).
PL § 265.03 provides that a person is criminally culpable for second-degree criminal possession of a weapon when, "with intent to use the same unlawfully against another: . . . [h]e possesses a loaded firearm." As noted above, Brown was found guilty for possessing a loaded firearm, on September 24, 1999, with the intent to use it against Campuzano. At his trial, the jury heard testimony that, on September 24, 1999, Brown possessed a loaded firearm, which he used to shoot Campuzano, while standing approximately six feet away from him. This testimony, when considered in the light most favorable to the prosecution, was sufficient to support the jury's verdict on the charge of second-degree criminal possession of a loaded firearm.
Sufficient evidence to support Brown's conviction exists in the trial record. Therefore, Brown is not entitled to habeas corpus relief, based on his claim that appellate counsel rendered ineffective assistance to him for failing to raise, on direct appeal, a claim of insufficient evidence.
B. Failing to Raise an Ineffective Assistance of Trial Counsel Claim
As discussed above, the record does not support a finding that trial counsel rendered ineffective assistance to Brown. Therefore, Brown's claim that the assistance his appellate counsel rendered was ineffective, because appellate counsel did not raise a claim of ineffective assistance of trial counsel to the state appellate court, does not warrant habeas corpus relief.See Jones v. Barnes, 463 U.S. 745, 754, 103 S. Ct. 3308, 3314 (1983) (appellate counsel is not required to "raise every 'colorable' claim suggested by a client"); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) ("a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker").
IV. RECOMMENDATION
For the reasons set forth above, I recommend that Brown's petition for a writ of habeas corpus be denied.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, New York, New York, 10007, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Cote. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).