Opinion
05 Civ. 5579 (DLC).
December 29, 2006
For petitioner: Edward Brown, pro se
For respondent: Ashlyn H. Dannelly, Assistant Attorney General, New York, NY.
OPINION ORDER
Edward Brown ("Brown") brings this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his July 9, 2001 conviction, following a jury trial, for criminal sale of a controlled substance in the third degree; criminal possession of a controlled substance in the third degree; criminal possession of a controlled substance in the fifth degree; and criminal possession of a controlled substance in the seventh degree. Brown was sentenced to a term of four and one-half to nine years' imprisonment. Brown now challenges his conviction on the grounds that: (1) the evidence offered by the prosecution to obtain his conviction was legally insufficient, and the verdict was against the weight of the evidence; (2) the prosecution failed to instruct the grand jury on the defense of agency; (3) he was denied leave to file a pro se supplemental brief in the intermediate state appellate court; and (4) his appellate counsel erred by failing to argue to the appellate court that it was reversible error for the district attorney not to give the grand jury instructions on the defense of agency.
As discussed further below, Brown's ineffective assistance claim was not raised until after this petition was filed.
This case was referred to Magistrate Judge Kevin N. Fox for a report and recommendation ("Report"), which was issued on September 15, 2006. The Report recommends that the petition be denied. On October 6, Brown's objections to the Report were received. This Opinion adopts the Report.
Background
The facts relevant to the petition are set forth in the Report and summarized here. On November 6, 2000, Brown was approached by an undercover New York City police detective near West 30th Street and Eighth Avenue in Manhattan. The detective asked Brown where he could buy drugs. Brown took him to a Burger King restaurant where he was introduced to Minni Hennix ("Hennix"). Hennix refused to sell drugs to the detective, but Brown said he could complete the transaction on his own. The detective gave Brown $30 in pre-recorded buy money and then observed Brown purchase three bags of crack cocaine from Hennix. When he rejoined the detective, Brown asked him to smoke some of the crack. The detective refused, and Brown gave him two of the bags of crack cocaine, walking away with the third.
The detective radioed his field team and provided locations and descriptions of Brown and Hennix. As Brown was about to be apprehended, he dropped a bag of crack cocaine, marked with the "Superman" logo, to the ground. Brown was searched, and a crack pipe and four dollars were recovered. Hennix was also apprehended and searched. Through a search of Hennix, officers recovered seventeen bags of crack cocaine, also marked with the Superman logo, and $255 in cash. The pre-recorded buy money was not recovered.
Brown was indicted by a New York County grand jury on the four charges described above. At his trial, Brown represented himself, assisted by advisory counsel. Brown did not present any evidence at the trial, but the judge instructed the jury on the agency defense. On July 9, 2001, Brown was convicted on all charges and later sentenced, as a second felony offender, to an aggregate indeterminate term of four and one-half to nine years imprisonment.
Brown, represented by counsel, appealed his conviction to the Appellate Division, arguing that the evidence presented by the prosecution was insufficient to sustain his conviction, and that the conviction was against the weight of the evidence since the prosecution had failed to disprove Brown's agency defense beyond a reasonable doubt. Brown sought leave to file a supplemental pro se brief in which he argued that the district attorney failed, erroneously, to instruct the grand jury about the defense of agency. The Appellate Division denied Brown's application for leave to file the brief, and later unanimously affirmed Brown's conviction. New York v. Brown, 789 N.Y.S.2d 877 (App.Div. 1st Dep't 2004). Brown then sought — and was denied — leave to appeal to the New York Court of Appeals. New York v. Brown, 4 N.Y.3d 828 (2005).
On June 14, 2005, Brown filed the instant petition. On March 24, 2006, he sought a stay of the action in order to return to state court to exhaust the claim of ineffective assistance of appellate counsel — a claim he had not previously pursued in the New York courts. On May 8, Judge Fox denied Brown's request for a stay, finding that although Brown had shown good cause for his failure to exhaust the ineffective assistance claim, he had not shown that it was potentially meritorious. Brown v. Ebert, No. 05 Civ. 5579 (DLC) (KNF), 2006 WL 1273830 (S.D.N.Y. May 9, 2006). On September 15, Judge Fox issued the Report, denying all four of Brown's claims on the merits. Discussion
"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." 28 U.S.C. § 2254(b)(2).
A petition for writ of habeas corpus may not be granted with respect to any claim that has been "adjudicated on the merits" in the state courts, unless the adjudication: "(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). When a magistrate judge has issued findings or recommendations, the district court "may accept, reject, or modify [them] in whole or in part." 28 U.S.C. § 636(b)(1)(C). The court shall make a de novo determination of the portions of the report to which the petitioner objects.United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). Where no objections are filed, or where the objections are "merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition," the court reviews the report for clear error. Gardine v. McGinnis, No. 04 Civ. 1819 (KMW), 2006 WL 3775963, at *4 (S.D.N.Y. Dec. 20, 2006) (citation omitted).
I. Ineffective Assistance of Counsel
Brown contends that his appellate counsel should have argued on appeal that it was improper for the district attorney to fail to instruct the grand jury on the agency defense. As a result, Brown maintains, he received constitutionally deficient legal assistance. The Report rejected this argument, incorporating by reference Judge Fox's May 8, 2006 Order regarding Brown's request for a stay. In that Order, Judge Fox noted that in order to demonstrate that he was denied effective assistance, a petitioner must show that his attorney's performance fell below an "objective standard of reasonableness" measured by "prevailing professional norms" and that "there is reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). Further, failure to make every nonfrivolous argument on appeal does not constitute ineffective assistance, since appellate counsel is permitted to exercise professional judgment when determining which issues to pursue. Jones v. Barnes, 463 U.S. 745, 751 (1983). Therefore, "[f]ailure to raise an argument on appeal constitutes ineffective assistance only when the omitted issue is clearly stronger and more significant than those presented [and] there is a reasonable probability that the omitted claim would have been successful before the state's highest court." Rivera v. Conway, 350 F. Supp. 2d 536, 546-47 (S.D.N.Y. 2004) (citing Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)).
Applying that standard to the facts of Brown's case, Judge Fox concluded that Brown's ineffective assistance claim was without merit. He noted that, under New York law, "[t]he so-called agency defense is not a complete defense." New York v. Chong, 45 N.Y.2d 64, 74 (1978). Therefore, while "one who acts solely as the agent of the buyer cannot be convicted of the crime of selling narcotics," New York v. Andujas, 79 N.Y.2d 113, 117 (1992) (citation omitted), he may still be convicted of possession, rather than sale. Chong, 45 N.Y.2d at 74. Mitigating defenses — that is, ones that do not eliminate "criminal liability entirely [but] rather . . . reduce the gravity of the offense committed,"New York v. Valles, 62 N.Y.2d 36, 39 (1984) — need not be presented to a grand jury. Id. As a result, Judge Fox concluded, the prosecution's failure to instruct the grand jury on the agency defense was not error, and Brown's appellate counsel could not be deemed ineffective because he chose not to pursue that argument.
Brown contends that agency should be deemed an exculpatory defense that the prosecutor was required to present to the grand jury. While Brown's argument is not frivolous, he has not met the extremely high burden of demonstrating that it is clearly stronger than the issues pursued by his appellate counsel, or that his lawyer's professional judgment was objectively unreasonable. The Report's holding on this claim will therefore be adopted.
II. Sufficiency of the Evidence
Relying on Jackson v. Virginia, 443 U.S. 307 (1979), the Report held that a habeas corpus petitioner is not entitled to relief based on a claim of insufficient evidence unless "no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Id. at 324. Further, since Brown's claim was adjudicated on the merits by the Appellate Division, Judge Fox found that Brown could not prevail unless he showed that the state court ruling involved an unreasonable application of the Jackson standard or an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Judge Fox held that Brown had done neither.
Brown's objection to this holding of the Report is brief. His argument in its entirety is that
[t]he evidence before the jury was equivocal at best, and to the extent that the trial jury made "factual" findings, these findings were inferences that were arbitrary and in no manner proved beyond a reasonable doubt. The behavior upon which the criminal charges are based is equally susceptible to a finding of not guilty as to all charges except seventh degree possession of a controlled substance.
Because this line of argument is the same as that presented in the underlying petition, de novo review of this portion of the Report is not required. The legal analysis not being clearly erroneous, the Report's rejection of Brown's claim of insufficient evidence is therefore adopted.
III. Remaining Claims
The Report rejects Brown's remaining claims on the ground that they do not implicate federal rights and therefore cannot provide the basis for habeas relief. Because Brown did not object to these portions of the Report and because they are not clearly erroneous, they will be adopted.
Conclusion
The recommendation of Magistrate Judge Fox is adopted, and the petition for a writ of habeas corpus is denied. In addition, I decline to issue a certificate of appealability. Brown has not made a substantial showing of a denial of a federal right, and appellate review is therefore not warranted.Grotto v. Herbert, 316 F.3d 198, 209 (2d Cir. 2003). I also find, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith. Coppedge v. United States, 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss the petition.
SO ORDERED: