Opinion
01 Civ. 8738 (SAS)(AJP)
July 12, 2002
REPORT AND RECOMMENDATION
What began as a war of words over a drug dealing spot in Manhattan resulted in petitioner Ricardo Bueno's fatally shooting Ramon Contin and shooting Francisco Hidalgo, for which Bueno was convicted in 1996 after a bench trial in Supreme Court, New York County, and sentenced to twenty-two years to life imprisonment. (Dkt. No. 2: Pet. ¶ 1-6.) Bueno's pro se habeas corpus petition alleges that: (1) he was denied effective assistance of counsel because" [c]ounsel was not present during [the] line-up," and (2) his Sixth Amendment rights to a jury trial were violated because "[t]he trial court neglected to appr[ise Bueno of] the difference between ajury and non-jury trial." (Pet. ¶ 12(A).)
For the reasons set forth below, Bueno's petition should be DENIED.
FACTS
The Murder of Ramon Contin and Attempted Murder of Francisco Hidalgo
The facts concerning Bueno's crime are not relevant to his habeas petition. They are included for sake of background, and are taken from Bueno's First Department brief.
The Prosecution Case
At about 9:30 p.m. on February 15, 1994, Ricardo Bueno and fellow drug dealer Louis Quinones (nicknamed "Guachupista") approached Francisco Hidalgo and Ramon Contin (nicknamed "Leo") on 109th Street and Columbus Avenue. (Ex. 1: Bueno 1st Dep't Br. at 3-4.) Hidalgo conceded at trial that he previously had worked for Bueno as a drug dealer, but testified that he had stopped doing so in November 1993. (Bueno 1st Dep't Br. at 3.) According to Hidalgo, when he refused to resume selling drugs for Bueno, Bueno said there would be "problems" and went with Quinones to obtain guns that they kept in a mailbox in a nearby building. (Bueno 1st Dep't Br. at 4.) Both Bueno and Quinones returned armed and began shooting at Hidalgo and Contin. (Bueno 1st Dep't Br. at 4.) Hidalgo ran, but looked back, saw Contin fall to the ground, and saw Bueno and Quinones stand over Contin and shoot him three more times. (Bueno 1st Dep't Br. at 4.)
References to Exhibits are to those in the State Appendix in Opposition to Bueno's Petition. (Dkt. No. 5.)
Cab driver Enrique Hincapie was at the intersection of 109th Street and Columbus Avenue, heard four or five shots, and saw a man lying on the ground with two men, one taller than the other, standing near the prone man's feet. (Bueno 1st Dep't Br. at 5.) Both men asked Hincapie for a ride, but he responded that he was not working, and the two men continued walking toward Central Park. (Bueno 1st Dep't Br. at 5-6.) At trial, Hincapie identified the taller man as Bueno (Bueno 1st Dep't Br. at 6), whom, Hincapie told police, he knew "from driving him a lot of timells] to 113th Street" (Ex. 0: Perez: Wade Tr. 55-56; see also Bueno 1st Dep't Br. at 6.)
The Defense Case
Bueno testified in his own defense that he and Quinones approached Hidalgo and Contin because Hidalgo had promised to let Bueno have his drug-dealing spot on 109th Street at 10:00 p.m. (Ex. I: Bueno 1st Dep't Br. at 11.) When Hidalgo refused to leave, they argued. (Bueno 1st Dep't Br. at 8, 11.) At some point, Bueno thought he and Hidalgo had reached an agreement (Bueno 1st Dep't Br. at 11), but Contin said to Hidalgo, "'I'm pissed off. Wait for me here. This is over and I'm coming back'" and walked away. (Ex. H: People v. Bueno, No. 1359/94, slip op. at 6 (Sup.Ct. N.Y. Co. Sept 9, 1996).) As Contin walked away, Bueno "observed [Quinones] draw a gun from his waistband and shoot Contin, who fell to the ground." (Id. at 6.) Bueno fled the scene. (Id.) Bueno denied seeing the cab driver, Hincapie, or asking him for a ride. Id.)
Bueno's only other defense witness, his son-in-law Hector Duran, who also dealt drugs, knew Quinones, Hidalgo, and Contin. (Bueno 1st Dep't Br. at 7-8.) Duran testified that on February 15, 1994, he saw Bueno and Hidalgo arguing over who could sell drugs at the spot on 109th Street during the night, and heard Contin say, "It's all over, I'm coming back." (Bueno 1st Dep't Br. at 8.) Duran testified that Quinones, who had remained silent during the dispute, fired at Contin as he turned to walk away. (Bueno 1st Dep't Br. at 8.)
Bueno's Arrest, Line-up and Suppression Hearing
On February 17, 1994, hearing that the police were looking for him in connection with Contin's murded, Bueno retained defense counsel Rudy Velez, who arranged for Bueno's voluntary surrender to the police. (Ex. J: Bueno 1st Dep't Pro Se Supp. Br. at 4.) Detectives Pat Frawley and Miguel Perez arrested Bueno at Velez's office at 9:15 p.m. and took him to the police station. (See Ex. 0: Perez: Wade Tr. 30, 62-64.)
Bueno was not "a subject of investigation" until Hincapie identified Bueno from police photographs the day after the shooting as the person "he had seen at the scene." (Ex. 0: Marquez: Wade Tr. 17- 20.)
On October 30-31, 1995, a Wade hearing was held concerning Bueno's motion to suppress Hincapie's identification of him from police photographs and Hincapie's and Hidalgo's lineup identification. (E.g., Ex. 0: Wade Tr. 126.) Bueno also claimed at the hearing that his right to counsel was violated because his counsel was not present at the line-up. (E, g., Wade Tr. 126.)
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967).
At the start of the Wade hearing, Bueno's retained counsel, Rudy Velez, told the judge that Bueno wished to have another lawyer represent him because Bueno felt Velez had not done enough. (Wade Tr. 2-4.) The trial judge noted that defense counsel and the prosecutor both had told him the case was ready for trial (Wade Tr. 5), and commented:
This is very late in the day to change lawyers. I have known Mr. Velez for many years myself to be a very accomplished lawyer representing people who are charged with crimes. In my experience he has always fought very hard for his clients.
I have not seen him or this prosecutor on this case before. This is my first day on this case. But, he tells me he's ready to represent you and I can't think of anybody who's better able to represent you than Mr. Velez since he is the one who has been with you on this case since the beginning and from the things that he said to me this morning he has investigated its background, has investigated the backgrounds of the individuals whose names will come up on the case, has some well-defined thoughts about your defense in this case and why it is the People will not be able to prove their case against you. He knows what his investigation has revealed in that regard and was telling me that he has done extensive investigation.
Why is it that you feel he is not able to represent you adequately at this time? (Wade Tr. 6-7, emphasis added.) Bueno responded that Velez had not gotten witness statements and other material from the prosecution, as had lawyers for other pretrial detainees. (Wade Tr. 7-10.) The judge explained that in Manhattan, unlike the Bronx which has "open discovery," the prosecution was not required to provide discovery until this hearing. (Wade Tr. 8-12.) The judge continued:
I can't speak for Mr. Velez, but I can say I know that he will be able and willing to make available to you all paperwork as he gets it now.
Right, Mr. Velez?
MR. VELEZ: Absolutely, your Honor.
THE COURT: And I know also based on his having tried cases with me before that if he feels he needs more time in order to look into something that he's just learned about hell ask me to give him that time. And, I also know that he has told me and the prosecutor that he has conducted an extensive investigation in this matter which he thinks supports your position on the case and that he's ready to go forward and try the case with the defense. I believe you and he had discussed which is you did not commit this crime and he has a pretty idea who committed it other than you.
I'm very well aware that your future is at stake here but I think Mr. Velez is very well aware of that too. And I know that you must feel anxious that you yourself have not been able to go to the law library and review the law, but Mr. Velez has already begun to raise legal issues with me this morning suggesting to me that he has done research on the case. Knowing that I'm sure he didn't want to leave it to you because that's what he's here for. And let me say the fact that the law is strange to you and that English is not your first language would not in any way prevent you from receiving a fair trial in this court. For that I can assure you we have a certified qualified official Spanish language interpreter, Ms. Placeres, here to help you. If at any time you don't understand the proceedings you tell Mr. Velez or me. Mr. Velez I happen to know speaks well in Spanish. And. in short. I can't think of anyone who is better qualified to represent you than the attorney who has been with you on this case since the beginning and knows this case better than anybody and that's Mr. Velez. It also is very difficult for me to let a defendant get a new lawyer when we're just about to start a trial. This case is over a year and a half old and really if there were a good reason to change lawyers that should had been explained to me before now.
Do you understand what I said?
THE DEFENDANT: Yes.
THE COURT: Are you able to work with Mr. Velez?
THE DEFENDANT: Well, with what you have explained to me so far, yes.
THE COURT: Okay. I'm going to assume he's representing you, is that a fair assumption?
THE DEFENDANT: Yes.
(Wade Tr. 11-14, emphasis added.) As a result of the judge's explanation of the process and endorsement of Velez, Bueno agreed to continue with Velez as his counsel. (Wade Tr. 14.)
Detective Marquez testified at the Wade hearing that after cab-driver Hincapie gave him a physical description of the shooter, he pulled out a drawer of hundreds of arrest photos for Hincapie to review. (Marquez: Wade Tr. 17-19, 27.) Detective Marquez had not heard Bueno's name before this, nor was Bueno a subject of the investigation. (Marquez: Wade Tr. 20, 22-24.) Hincapie picked Bueno's photo out of the drawer and identified him as the taller shooter he had seen at the crime scene. (Marquez: Wade Tr. 19-20.)
Detective Perez testified regarding the line-ups he conducted in which Hincapie and Hidalgo, separately, identified Bueno from the five "fillers." (Ex. 0: Perez: Wade Tr. 41-43.) Photographs of the line-up were introduced at the hearing. (Perez: Wade Tr. 44-48.) Defense counsel established on cross-examination that none of the line-up fillers were Hispanic. (Perez: Wade Tr. 65.) Both witnesses identified Bueno. (Perez: Wade Tr. 51, 54-55.) Hidalgo had told Detective Perez before the line-up that he knew Bueno "for a long time." (Perez: Wade Tr. 52-53.) Hincapie told Detective Perez before the line-up that he knew the shooter "from driving him a lot." (Perez: Wade Tr. 55-56.)
On cross-examination, Velez asked if the police questioned Bueno before the line-up, and Detective Perez said they did not, "because [Velezi requested us not to talk to" Bueno. (Perez: Wade Tr. 60-62.) Velez then questioned Detective Perez about whether Velez had said he wanted to be present at the line-up:
Q. Well, February 17, 1994 at about 9:15 p.m. you arrived at 88 Grand Concourse?
A. That's correct.
Q. My office, is that correct?
A. That's correct.
Q. And you remember meeting me?
A. Yes.
Q. All right. And do you remember whether or not I gave instructions there was going to be a line-up I may want to be present?
A. No. that's not what you say.
Q. I'm saying — you are saving that I didn't say that?
A. Yes.
Q. I've never said that?
A. No, you didn't.
Q. All I did tell you was don't question Mr. Bueno. that's it?
A. And we asked you if you wanted to be present in the line-up and you declined.
Q. You specifically asked that?
A. No, I didn't, Detective Frawley did.
Q. Okay. And you remember that you asked whether or not I wanted to be present at the line-ups and I declined that?
A. We asked, yes.
(Perez: Wade Tr. 62-63, emphasis added.)
At the conclusion of the evidence, Bueno's counsel, Mr. Velez, argued that the fillers in the line-up were not representative of Bueno's background because Bueno is a dark-skinned Hispanic and the fillers were African-American. (Wade Tr. 90.) Velez suggested to the judge that the line-up "photographs speak for themselves." (Id.) Second, Velez argued that he should have been present at the line-up. (Wade Tr. 91.) Velez started to argue that he "instructed the police. but the judge reminded Velez that he could argue but not testify. (Wade Tr. 91.) Despite the judge's directive, Velez responded that based on the way he operates, if the police had told him Bueno was going to be put in a line-up, he "would have told them [he] want[ed] to be present." (Wade Tr. 92.)
The prosecutor responded that "at the time this line-up took place there was no socalled indelible right to counsel, no accusatory instrument had been filed. . . . There was . . . no arrest warrant, no felony complaint file[d], no right to counsel had attached, your Honor, so that there was no non-waivable duty for counsel to be present. And, besides that, your Honor, the evidence in this case . . . is clear that the detectives did inform the defendant and counsel that a line-up or line-ups would be taking place." (Wade Tr. 97-98; see also Wade Tr. 108-12.)
Velez conceded that Bueno was present next to him during the discussion in his office with the police. (Wade Tr. 99-100.)
The state court found that the police witnesses were credible and that they had informed defense counsel of the impending line-up and that counsel declined to attend. (Wade Tr. 126, 129.) Further, the state court held that at no time during the line-up did Bueno ask for counsel. (Wade Tr. 132.) Specifically, the state court held,
I think a number of things are very clear where a suspect who has not been arraigned [who is] known by police [to] have an attorney the police cannot actively exclude the attorney from the line-up. [U]nder some circumstances, for example, where the defendant explicitly request[s] counsel the police must give defense counsel notice [and] an opportunity to appear. [I]t's also very well established that the defendant's right to counsel in such a circumstance may not be denied. . . .
Now, this rule that even though suspects are not usually entitled to counsel at investigatory pre-accusatory line-ups, but [when] they're actually represented by counsel and the police know this, the attorney must be afforded a reasonable opportunity to attend as the Court of Appeals says [it is] not an absolute or abstract right. . . .
Although I have not found appellate authority precisely reach[ing] that conclusion I am guided, though, by the fact that where the right [to counsel at lineup] is activated what the defendant is entitled to is notification to counsel of the impending investigatory line-up [and] a reasonable opportunity to attend. I am guided in particular by the First Department's decision last year in [People v. McRae, 195 A.D.2d 180, 607 N.Y.S.2d 624 (1st Dep't), appeal denied, 83 N.Y.2d 969, 616 N.Y.S.2d 22 (1994)]. . . .
In [McRae], the lawyer requested an opportunity to be at the line-up and I believe the defendant before the line-up [also] started requesting an opportunity that the lawyer be there. And after giv[ing] an opportunity for the lawyer to attend the police went ahead and conducted the line-up and the Appellate Division held that there was no violation of the defendant's right to counsel. . . . [s]ince the police were merely required to pre-advise notice if possible [of] a reasonable opportunity to attend. In our case of course we had the two witnesses at the precinct at 2:30 in the morning and the line-ups ready to go forward. And we had counsel presented with an opportunity to come to the precinct which was declined. I think that suffices under [McRae] and [People v. LaClere, 76 N.Y.2d 670, 563 N.Y.S.2d 30 (1990)] and the cases to comport with defendant's right to counsel.
At no time did either counsel or defendant in this case ask for counsel to be present and this of course was certainly a pre-judicial line-up regardless of what the yardstick is used to measure judicial involvement. The only instruction given by counsel to the police was that they not question the defendant and . . . because of the difference in the role of counsel at line-ups and at custodial interrogation I think that is all that's required by the law. . . .
For all those reasons, I deny the defendant's motion to suppress in its entirety.
(Wade Tr. 138-43, citations omitted.)
The state court also rejected Bueno's objections to the alleged suggestiveness of the photographic and line-up identifications. The state court held that the photograph identification procedure was not suggestive since Hincapie was provided with a drawer of hundreds of photographs which were of the standard size and type and the police made no suggestive remarks and had not even heard of Bueno before Hincapie's identification. (Ex. 0: Wade Tr. 127-28, 137, see also page 6.) Further, the state court found that the procedure used during the line-up was not suggestive. (Wade Tr. 136.) Specifically, the court noted that the fillers, "while not looking like twin brothers of the defendant do resemble [Bueno] closely [in] their skin tone, hair style, facial hair, and relative age." (Wade Tr. 136.) of particular importance to the court was the fact that both eyewitnesses were familiar with Bueno. (Wade Tr. 137.)
Bueno's Jury Trial Waiver
On October 31, 1995, the second day of the Wade hearing, Bueno executed a waiver of his right to a jury trial. (Ex. 0: Wade Tr. 103-06.) The following colloquy occurred between Bueno and the trial judge:
THE COURT: Mr. Bueno, your attorney has just told me that you wish to give up your right to have a jury of 12 people decide this case. You have the right under the constitution and laws of this country and this state to have this case decided by a jury of 12 people from the community whom you and your lawyer help select. I am prepared this afternoon to begin jury selection in this case and as I said you and your lawyer and the District Attorney would determine who serves as jurors in this case. This is your right and no one can take it away from you.
You also have the right to give up the right to a jury trial in this case and have me try this case without a jury. This is a very important decision that you have to think very carefully about.
Do you understand everything I've said to you just now?
[BUENO]: Exactly, yes.
THE COURT: Have you had enough time to consider this important decision and discuss it with Mr. Velez?
[BUENO]: Yes.
THE COURT: Are you satisfied with the legal advice you received from him on this subject?
[BUENO]: Yes.
THE COURT: And understanding what your rights are is it now your determination to give up the right you would otherwise have to a jury trial in this case and have the case decided just by the Court? In other words, by me alone. Is that your decision?
[BUENO]: Yes.
(Wade Tr. 103-04, emphasis added.) After "present[ing Bueno] with some paperwork . . . and [having] the translator translate" (Wade Tr. 104) the waiver form to Bueno in Spanish, the colloquy continuted:
THE COURT: Mr. Bueno, in the presence of your attorney you are advised of your rights to be tried under this indictment by jurors of 12 persons. You waive your right to a jury trial and you request that you be tried by the Court without the jury, do you do so after consultation with your attorney and with full understanding of the rights and privileges which you now waive?
[BUENO]: Yes. . . .
THE COURT: Okay. In my presence Mr. Bueno and Mr. Velez executed this waiver of jury trial indicating that Mr. Bueno having been indicted for murder in the second degree and having been informed of his right to be tried under that indictment by a jury of 12 persons has today in open court waived his right to trial by jury p[u]rsuant to Article I Section 2 of the New York State Constitution and has requested that he be tried by the Court without a jury.
(Wade Tr. 105-06.)
Bueno's Verdict and Sentence
On December 1, 1995, Bueno was convicted after a bench trial of second degree murder and second degree attempted murder. (See Ex. H: People v. Bueno, No. 1359/94, slip op. at 1 (Sup.Ct. N.Y. Co. Sept. 9, 1996).) On March 26, 1996, Bueno was sentenced to concurrent prison terms of twenty-two years to life and eight to sixteen years imprisonment. (See id. at 1.) See also People v. Bueno, 276 A.D.2d 261, 261, 714 N.Y.S.2d 201, 202 (1st Dep't 2000).
Bueno's C.P.L. § 330 Motion
On or about March 5, 1996, Bueno's new counsel filed a motion pursuant to C.P.L. § 330.30(1) to set aside the verdict on the grounds that Bueno was "fraudulently induced by [trial] counsel, Rudy Velez, Esq., to waive a jut' trial at the Wade hearing (and that the waiver was therefore invalid), that Bueno's counsel failed to investigate his case adequately, and that he had ineffective assistance of trial counsel in that trial counsel's questions were "poorly put and difficult to understand," "lacked focus and logical progression," counsel "was argumentative with witnesses," his legal arguments were "totally inept," and that in general, "[t]he record of the trial is so replete with examples of poor performance that they are truly too numerous to cite." (Ex. D: Bueno C.P.L. § 330 Aff. at 4, 6, 8-9.) Bueno's C.P.L. § 330 motion alleged that trial counsel Rudy Velez falsely assured him that
C.P.L. § 330.30(1) provides:
At any time after rendition of a verdict of guilty and before sentence, the court may, upon motion of the defendant, set aside or modify the verdict or any part thereof upon the following grounds:
1. Any ground appearing in the record which, if raised upon an appeal from a prospective judgment of conviction, would require a reversal or modification of the judgment as a matter of law by an appellate court.
[h]e would be acquitted if he waived a jury, but, he would be found guilty by a jury and sentenced to Twenty-Five years to Life if he did not execute ajury trial waiver. . . . Velez's guarantee of an acquittal in the event of a jury waiver caused [Bueno] to give in to tremendous pressure exerted by Mr. Velez to execute the waiver.
(Bueno C.P.L. § 330 Aff. 5, 7-8.)
On March 26, 1996, the trial judge denied Bueno's C.P.L. § 330 motion, reading the court's findings and opinion into the record. (See Ex. F: Bueno C.P.L. § 330 Aff. at 3-4.) The trial judge "observed that defendant had failed to set forth a single example of counsel's poor questioning or even to allege how counsel's examination affected the verdict, if at all, and that unartful questioning, by itself could have no effect on a verdict rendered by the court." (Ex. H: People v. Bueno, slip op. at 10.) Further, regarding trial counsel's alleged improper legal arguments, the trial judge held that "defendant had failed to set forth any specific deficiencies of which he was complaining and, thus, failed to allege a sufficient factual basis for that aspect of his motion. . ." (Id. at 11.) Finally, the trial judge held that the coercion and failure to mitigate arguments "concerned matters not appearing in the record and, thus, could not form a basis for setting aside the verdict pursuant to CPL § 330.30(1)." (Ex. H: People v. Bueno, slip op. at 10.)
Bueno's C.P.L. § 440 Motion
On or about April 19, 1996, Bueno's same new counsel moved to set aside the verdict pursuant to C.P.L. § 440.10(1)(f), (g), (h) (Ex. F: Bueno C.P.L. § 440 Notice of Motion at 1), incorporating all of the grounds set forth in his previous C.P.L. § 330 motion and also moving for a new trial based on newly discovered evidence. (Bueno C.P.L. § 440 Aff. Br. at 4).
The relevant portions of C.P.L. § 440.10 state,
1. At any time after the entry of a judgment, the court in which it was entered may, upon motion of the defendant, vacate such judgment upon the ground that:
(f) Improper and prejudicial conduct not appearing in the record occurred during a trial resulting in the judgment which conduct, if it had appeared in the record, would have required a reversal of the judgment upon an appeal therefrom; or
(g) New evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part and which is of such character as to create a probability that had such evidence been received at the trial the verdict would have been more favorable to the defendant; provided that a motion based upon such ground must be made with due diligence after the discovery of such alleged new evidence; or
(h) The judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States.
C.P.L. §§ 440.10(1)(f), (g), (h).
On July 10-11, 1996, a hearing was held on Bueno's C.P.L. § 440 motion. Trial counsel Rudy Velez testified that he "explained to Mr. Bueno that in front of a jury I believed that his chance for an acquittal would be so very much diminished, knowing the nature of the testimony regarding the drug dealing that would be elicited." (Ex. P: Velez: 440 Hearing Transcript ["H."] 13-14.) Velez testified that he believed that the judge would not "be in anyway swayed by the fact that the defendant was an admitted drug dealer and that she would clearly focus on reasonable doubt." (Velez: H. 14-16; see also id. at 37-39.) Velez testified that he told Bueno that he knew the trial judge but did not make any reference to the positive things the judge had said about him on the record at the Wade hearing. (Velez: H. 17-20.) Velez further testified that he recommended the jury waiver to Bueno but told him he did not have to "waive anything." (Velez: H. 20-22.)
Bueno also testified at the hearing. He testified that Velez discussed with him that he knows the judge, they are "friends," and "he can have an understanding with her." (Bueno: H. 52, 57-58, 62.) According to Bueno, Velez told him that if the jurors "found out about [Bueno's] past with drugs, they were going to condemn" him. (Bueno: H. 56; see also id. at 57, 71.) Bueno testified that he did not really know what a jury was, he relied on Velez's advice and Velez told him how to answer the judge's questions. (Bueno: H. 63-65, 70-72.)
In a written opinion issued after the hearing, the trial judge held that Bueno' s waiver of a jury trial was valid, because Bueno "failed to sustain his burden" of proving that the waiver was coerced and unknowing, involuntary and unintelligent. (Ex. H: People v. Bueno, No. 1359/94, slip op. at 19 (Sup.Ct. N.Y. Co. Sept. 9, 1996).) The trial judge explained:
Having heard the testimony adduced at the hearing, I find that attorney Velez was a candid. forthright. and credible witness. His testimony was cogent, sensible and internally consistent. Moreover, defendant himself conceded not only that Velez had explained the function of a jury and why a waiver would be to his advantage, but also that Velez had spoken with his family about the proposed waiver.
Furthermore, key aspects of defendant's testimony were significantly contradicted by the record and were otherwise not credible. For example, his contention that Velez had expressed concern to him on October 31 that the prosecutor not learn of my acquaintance with Velez is incredible, given the colloquy on October 30 in which I made our acquaintance clear on the record and before all parties.
Moreover, although defendant testified that Velez had explained to him in Spanish the function of a jury and his reasons for recommending waiver, defendant then inexplicably testified that he told Velez that he did not understand the function of a jury because he does not speak English. Additionally, the record reflects that the waiver colloquy, simultaneously translated into Spanish for defendant. included a further explanation of a jury. and that defendant clearly stated that he understood everything that was occurring and that he had sufficiently discussed it with counsel. For defendant now to claim that counsel, who conversed with him in Spanish, ignored a language barrier, leaving defendant unable to comprehend the discussion, is singularly incredible. Defendant's previous contact with the criminal justice system also makes it highly unlikely that he failed to understand what had repeatedly been explained to him. Furthermore, defendant's contention that he blindly followed Velez'[s] advice in waiving a jury is belied by the independence he demonstrated on October 30 in raising the issues concerning Velez's representation. Defendant did not appear to be an impassive or easily coerced client.
(Ex. H: People v. Bueno, slip op. at 17-18, emphasis added.) The trial judge held, therefore, that trial counsel Velez "satisfactorily explained to defendant not only his constitutional right to a trial by jury, but also the reason for his urging that the right be waived, namely, to obtain an objective review of the evidence without risking a jury's disapproval of defendant's unsavory past." (Id. at 18-19.) The trial judge held that "[s]uch a recommendation was both reasonable and non-coercive. Defendant has offered no credible evidence of coercion of his jury waiver, either by his trial counsel or by the court, and I find none to have occurred." (A. at 19.) The trial judge concluded:
I further find that defendant was fully informed and knowledgeable about the rights he was giving up, owing to the explanations he received from his attorney, from this court and from the clerk of the court. Defendant's acknowledgement on the record of his understanding of his rights and his desire to waive them voluntarily further supports a finding that no coercion occurred. Consequently, defendant has failed to sustain his burden.
(Id.)
The trial judge also rejected Bueno's claim that Velez had conducted an inadequate investigation:
[A]lthough defendant asserted in his motion that trial counsel failed to interview suggested witnesses, conduct an adequate investigation and hire an investigator, he did not contradict Velez's detailed and credible testimony to the contrary, which I fully credit. The credible testimony at the hearing clearly established that attorney Velez thoroughly prepared the case for trial and pursued all avenues of investigation presented. Moreover, defendant failed to identify any omitted witnesses or how their testimony would have benefitted him if they were called to testify.
(Id. at 20-21.)
Finally, the trial court held that denial of Bueno's claim that counsel's performance at trial was inadequate was "required pursuant to CPL § 440.10(2)(b)" "[a]s all of the pertinent facts concerning these particular claims appear on the record." (People v. Bueno, slip op. at 21.)
Bueno's Direct Appeal
On January 21, 1997, Bueno was granted leave to appeal from the denial of his C.P.L. § 440.10 motion, and that appeal was consolidated with his direct appeal. (See Ex. I: Bueno 1st Dep't Br. at 1; Ex. K: State 1st Dep't Br. at 3.) In September 1999, the Legal Aid Society filed Bueno's appellate brief, alleging a single claim, not here relevant, of newly discovered evidence. (Bueno 1st Dep't Br. at 19-25.) Bueno filed a supplemental pro se brief claiming that his conviction should be reversed because, inter alia: (1) his right to counsel had attached before his line-up and even if trial counsel had declined to appear at Bueno's line-up, that would not constitute a waiver of his right to counsel at the line-up (Ex. J: Bueno 1st Dep't Pro Se Supp. Br. at 15-20); (2) he was fraudulently induced into entering "an involuntary, unintelligent, and unknowing waiver of his guaranteed right to a jury trial" and he waived ajury only because his attorney said that ajury would convict him (id. at 20-23); (3) Bueno was denied the right to effective assistance of trial counsel because, among other things, trial counsel did not seek sanctions when the prosecution did not turn over the photograph selected by Hincapie and failed to make timely objections to the violation of Bueno's right to counsel at the line-up. (Id. at 26-29.)
On October 3, 2000, the First Department upheld Bueno's conviction, rejecting his newly discovered evidence claim and further holding: "We have considered and rejected [Bueno's] remaining claims, including those contained in his pro se supplemental brief." People v. Bueno, 276 A.D.2d 261, 261-62, 714 N.Y.S.2d 201, 202 (1st Dep't 2000).
On December 5, 2000, the New York Court of Appeals denied leave to appeal. People v. Bueno, 95 N.Y.2d 961, 722 N.Y.S.2d 478 (2000).
Bueno's Present Federal Habeas Corpus Petition
Bueno's present timely filed prose federal habeas corpus petition was originally filed in the Northern District of New York, and transferred to the Southern District. Bueno's habeas petition alleges that: (1) he was denied effective assistance of counsel because "[c]ounsel was not present during [the] line-up," and (2) his Sixth Amendment rights to a jury trial were violated because "[t]he trial court neglected to appr[ise Bueno of] the difference between ajury and non-jury trial." (Pet. ¶ 12(A).)
ANALYSIS
For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Larrea v. Bennett, 00 Civ. 5813, 2002 WL 1173564 at *1446 (S.D.N.Y. May 31, 2002) (Peck, M.J.); Jamison v. Berbarv, 01 Civ. 5547, 2002 WL 1000283 at *8.9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *1243 (S.D.N.Y. May 8, 2002) (Peck, Mi.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *8-9 (S.D.N.Y. Jan. 25, 2002) Zeck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at * 10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), affdmem., No. 01-2474, 2002 WL 144874 (2d Cir. June 28, 2002).
Before the Court can determine whether Bueno is entitled to federal habeas relief on his claims that his right to a jury trial and his right to counsel at line-up were violated, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").
In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(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) . . . 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)(1)-(2).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independant meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42.
Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).
Accord, e.g., Kennaugh v. Miller, 289 F.3d 36, 41 (2d Cir. 2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).
As to the "contrary to" clause:
A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent. Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.
Accord, e.g., Kennaugh v. Miller, 289 F.3d at 41; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.
In Williams, the Supreme Court explained that "[u]nder the "unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term "unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id at 409 120 S.Ct. at 1521.
Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.
The Second Circuit has explained "that while "[s]ome increment of incorrectness beyond error is required . . . 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."' Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone 221 F.3d 100, 111 (2d Cir. 2000)); see also, Z Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:
For the purposes of AEDPA deference, a state court "adjudicate [5]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254 (d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.
Sellan v. Kuhlman, 261 F.3dat 312; accord, e.g., Jenkins v. Artuz, Nos. 01-2355, 01-2328, 2002 WL 483547 at *6 (2d Cir. Apr. 1, 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word "denied" — triggered AEDPA deference."); Norde v. Keane, No. 01-2049, 2002 WL 483488 at *7 (2d Cir. Mar. 29, 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the "unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:
We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v Cain 179 F.3d 271, 274 (5th Cir. 1999).
Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 2002 WL 483488 at *7; Aparicio v. Artuz, 269 F.3d at 93.
In denying Bueno's appeal, the First Department "considered and rejected [Bueno's] remaining claims, including those contained in his pro se supplemental brief." People v. Bueno, 276 A.D.2d 261, 261-62, 714 N.Y.S.2d 201, 202 (1st Dep't 2000). Therefore, the First Department adjudicated Bueno's claims "on the merits," and the deferential AEDPA review standards apply.
II. THE FIRST DEPARTMENT'S DETERMINATION THAT BUENO'S WAIVER OF HIS RIGHT TO A JURY TRIAL WAS VALID DID NOT CONSTITUTE AN UNREASONABLE APPLICATION OF SUPREME COURT PRECEDENT
Bueno's habeas petition alleges that his waiver of a jury trial was "unintelligently understood," he "merely went along with" his trial counsel, and the "trial court neglected to app[ri]se defendant [of the] difference between a jury and non-jury trial." (Pet. 12(A).) The First Department rejected this claim without explanation. People v. Bueno, 276 A.D.2d 261, 261-62, 714 N.Y.S.2d 201, 202 (1st Dep't 2000).
The right to trial by jury in criminal cases is a fundamental constitutional right. See Duncan v. State of Louisiana, 391 U.S. 145, 157-58, 88 S.Ct. 1444, 1452 (1968) ("a general grant of jury trial for serious offenses is a fundamental right, essential for preventing miscarriages of justice and for assuring that fair trials are provided for all defendants"); U.S. Const. art. Ill, § 2, cl. 3; U.S. Const. amend. VI. Nevertheless, a defendant may waive the right to trial by jury. See, e.g., Duncanv. State of Louisiana, 391 U.S. at 158, 88 S.Ct. at 1452 ("we hold no constitutional doubts about the practices, common in both federal and state courts, of accepting waivers of jury trial"); Patton v. United States, 281 U.S. 276, 298, 50 S.Ct. 253, 258 (1930) (The Constitution confers "a right upon the accused [to a trial by jury] which he may forego at his election. To deny his power to do so is to convert a privilege into an imperative requirement."), abrogated in part on other grounds, Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893 (1970) (upholding jury trial of 6 rather than 12 jurors). Since a trial by jury "confers burdens as well as benefits, an accused should be permitted to forego [his] privileges when his competent judgment counsels him that his interests are safer in the keeping of the judge than of the jury." Adams v. United States, 317 U.S. 269, 278, 63 S.Ct. 236, 241 (1942).
However, because trial by jury is the "normal and, with occasional exceptions, the preferable mode of disposing of issues of fact in criminal cases, . . . the right of the accused to a trial by a constitutional jury [must] be jealously preserved." Patton v. United States, 281 U.S. at 312, 50 S.Ct. at 263. "[B]efore any waiver [of a jury trial] can become effective, the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant." Patton v. United States, 281 U.S. at 312, 50 S.Ct. at 263. The court must ensure that the defendant has waived his right to a jury trial not "as a mere matter of rote, but with sound and advised discretion." Id see also, e.g., Adams v. United States, 317 U.S. at 275, 63 S.Ct. at 240 ("an accused, in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury").
In order to waive the right to trial by jury, the defendant must execute a written waiver in open court, the prosecution and trial court must consent, and the waiver must be "voluntary, knowing, and intelligent." United States v. Martin, 704 F.2d 267, 271-73 (6th Cir. 1983); see also, e.g., Marone v. United States, 10 F.3d 65, 67 (2d Cir. 1993) ("The right to a jury trial must be jealously preserved, and before this right can be waived, the trial court must satisfy itself that the defendant has intelligently consented."); United States v. Hunt, 413 F.2d 983, 983-84 (4th Cir. 1969) ("[N]othing more was required, either by [Fed.R.Crim.P.] Rule 23(a), or the Sixth Amendment," for a valid waiver of the right to a jury trial than defendants' statements in open court that they waived jury trial, a written waiver executed in open court, and consent by court and United States Attorney); see also Fed.R.Crim.P. 23(a) (requiring that the right to jury trial be waived explicitly in writing); cases cited in fn. 15 below.
A trial court is not constitutionally required to conduct an on-the-record colloquy with a defendant prior to a waiver of the right to a jury trial. See e.g., Marone v. United States, 10 F.3d at 67 (citing United States v. Martin, 704 F.2d at 274 United States v. Scott 583 F.2d 362, 363-64 (7th Cir. 1978)). "In order to obviate any future misunderstandings," however, the Second Circuit, in the exercise of its supervisory powers over the federal trial courts, suggested that
the district courts individually inform each defendant, on the record, of the fundamental attributes of a jury trial before accepting a waiver. This court urges that at a minimum the district courts inform each defendant that a jury is composed of twelve members of the community, that the defendant may participate in the selection of the jurors, that the jury's verdict must be unammous, and that a judge alone will decide guilt or innocence if the defendant waives the right to a jury trial.
Marone v. United States, 10 F.3d at 67-68 (citations omitted); see also Philippe v. Lacy, No. 95 CV 4545, 1998 WL 440301 at *6 (E.D.N.Y. July 30, 1998) (habeas petitioner's claim that his jury trial waiver was not valid "is clearly without merit as the record reveals an express waiver of the petitioner's right to a jury trial, which was signed by the petitioner, his counsel, and the judge presiding over the case."); Burnett v. Racette, No. 92-CV-785, 1996 WL 904018 at *4-5 (W.D.N.Y. May 17, 1996) ("the written waiver and brief colloquy sufficiently demonstrate that [petitioner] voluntarily, knowingly and intelligently waived his right to ajury trial."), report rec. adopted, 1997 WL 251498 (W.D.N.Y. May 8, 1997).
Other circuits have suggested similar colloquies. See United States v. Martin, 704 F.2d at 274-75 (imploring "the district courts to personally inform each defendant of the benefits and burdens of jury trials on the record prior to accepting a proffered waiver. At a minimum, a defendant should be informed that a jury is composed of 12 members of the community, he may participate in selection of jurors, the verdict of the jury must be unammous, and that a judge alone will decide guilt or innocence should he waive his jury trial right.") (citations omitted); United States v. Anderson, 704 F.2d 117, 119 (3d Cir.) ("a colloquy between the district judge and the defendant is preferable to the mere acceptance by the court of the written waiver. . . . The colloquy between the judge and the defendant serves both to emphasize to the defendant the seriousness of the decision to waive the right to trial by jury and to create a clear record of the circumstances of the waiver, establishing that "express and intelligent consent' was indeed given by the defendant."), cert. denied, 464 U.S. 838, 1045. Ct. 129 (1983); United States v. Delgado, 635 F.2d 889, 890 (7th Cir. 1981) ("We take this opportunity to advise the [federal] trial courts that they should explain that a jury is composed of twelve members of the community, that the defendant may participate in the selection ofjurors, and that the verdict of the jury is unammous. The court should inform the defendant that if he waives a jury, the judge alone will decide guilt or innocence. After informing the defendant of these factors, the trial court should then ascertain whether the defendant wishes to waive his right to a jury trial. Only after this type of inquiry will the court be able to determine that the defendant understands his right to a jury trial and the consequences of waiver."); United States v. Scott, 583 F.2d at 364 (adopting arule under its supervisory power requiring that "before a district court accepts a waiver of jury trial the court will interrogate the defendant to ensure that he understands his right to ajury trial and the consequences of waiver."); United States v. David, 511 F.2d 355, 361 (D.C. Cir. 1975) ("trial judges would be well-advised to directly question the defendant in all cases to determine the validity of any proffered waiver of jury trial"); United States v. Mitchell, 427 F.2d 1280, 1282 (3d Cir. 1970) ("We do believe that it is better practice for a district judge, when advised by a defendant that he desires to waive his right to a jury trial, to interrogate the defendant so as to satisfy himself that the defendant is fully apprised of his rights and freely and voluntarily desires to relinquish them."); United States v. Hunt, 413 F.2d at 984 ("Undoubtedly, it is better practice for a district judge, when advised by a defendant that he desires to waive his right to a jury trial, to interrogate the defendant so as to satisfy himself that the defendant is fully apprised of his rights and freely and voluntarily desires to relinquish them. Such an interrogation would provide the district judge with an additional factual basis on which to grant or withhold his approval of the waiver. It would tend to obviate motions under 28 U.S.C.A. § 2255 and discourage groundless appeals.").
In Bueno's case, the trial judge explained to Bueno that he had a right, which "no one" can take . . . away,"under the constitution and laws of this country and this state to have this case decided by a jury of 12 people" who were to be chosen by "you and your lawyer and the District Attorney." (Ex. 0: Wade Tr 103-04; see also page 11 above.) The trial judge further explained to Bueno that he could "give up the right to a jury trial in this case and have me try this case without a jury." (Wade Tr. 103-04; see also page 11 above.) The trial judge asked if Bueno understood his rights and if he had taken sufficient time to "consider this important decision and discuss it" with counsel, to all of which Bueno answered yes. (Wade Tr. 103-04; see also page 11 above.) The trial judge asked if Bueno was "satisfied with the legal advice you received from [counsel] on this subject," to which Bueno again assented. (Wade Tr. 103-04; see also page 11 above.) The trial judge further asked, "And understanding what your rights are is it now your determination to give up the right you would otherwise have to a jury trial in this case and have the case decided just by the Court? In other words, by me alone." (Wade Tr. 103-04; see also page 11 above.) Again, Bueno responded affirmatively. (Wade Tr. 103-04; see also page 11 above.) After this dialogue, Bueno was read the jury trial waiver form in Spanish and signed it. (Wade Tr. 103-04, see also page 12 above.)
The trial court in Bueno' s case did everything required under Patton v. United States, 281 U.S. 276, 50 S.Ct. 253 (1930), and engaged in a colloquy with Bueno similar to that suggested by the Second Circuit and other Circuits (in their supervisor powers over federal trials). The First Department's affirmance of the trial judge's acceptance of Bueno's waiver of a jury trial was not contrary to applicable Supreme Court precedent nor an unreasonable application of Supreme Court precedence. Indeed, the trial judge's decision, affirmed by the First Department, clearlywas correct.
III. BUENO'S CLAIM BASED ON COUNSEL'S ABSENCE AT THE LINE-UP
Although labeled "denial of effective assistance of counsel" for counsel's failure to be present at the line-up (Pet. ¶ 12(A)), it is clear from Bueno's "Memorandum of Law" attached to his petition that he is really challenging the occurrence of the line-up without counsel's presence. (Bueno Memo. of Law attached to Pet.)
A. Bueno Had No Sixth Amendment Right to Counsel at His Line-Up
The Sixth Amendment right to counsel at a line-up attaches only upon the initiation of adversarial criminal proceedings, such as by formal charge, indictment or arraignment. see also Kirby v. Illinois, 406 U.S. 682, 690-91, 92 S.Ct. 1877, 1882-83 (1972); Boyd v. Henderson, 555 F.2d 56, 60-61 (2d Cir.) ("In Kirby, the [Supreme] Court clarified its Wade and Gilbert decisions by holding that the right to counsel at identification procedures attaches only with the initiation of adversary criminal proceedings, such as by formal charge, indictment, or arraignment."), cert. denied, 434 U.S. 927, 98 S.Ct. 410 (1977); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *8 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.).
See also, e.g., Murray v. McGinnis, 00 Civ. 3510, 2001 WL 26213 at *3 (S.D.N.Y. Jan. 10, 2001) ("The United States Constitution does not require that a suspect in a pre-indictment lineup be represented by counsel . . ."); DeJesus v. Duncan, 00 Civ. 2095, 2000 WL 1654853 at *1 (S.D.N.Y. Nov. 3, 2000) ("Because the case was still in the investigatory stage at the time that the line-up was conducted, and petitioner had not been formally charged with any crime, there was no requirement that an attorney be present at the lineup."); Lewis v. Strack, 97 Civ. 7787, 1998 WL 404793 at *2 n. 3 (S.D.N.Y. July 17, 1998) (Scheindlin, D.J.); Green v. Artuz, 990 F. Supp. 267, 272 n. 6 (S.D.N.Y. 1998) ("It is well established that an accused does not have a Sixth Amendment right to counsel [at a line-up] prior to the State's commencement of formal adversarial proceeding against him."); Aziz v. Warden of Clinton Corr. Facility, 89 Civ. 6053, 1991 WL 278907 at *6 (S.D.N.Y. Dec. 18, 1991).
In Bueno's case, it is undisputed that Bueno's line-up occurredprior to his arraignment and indictment. (Ex. 0: Wade Tr. 142.) Therefore, his federal constitutional right to counsel had not attached. See e.g., Ferguson v. Walker, 2001 WL 869615 at *8 (where "it is undisputed that [petitioner's] lineup occurred prior to his indictment. . . . [petitioner's] Sixth Amendment claim fails on the merits."); Murray v. McGinnis, 00 Civ. 3510, 2001 WL 26213 at *3 (S.D.N.Y. Jan. 10, 2001) ("The United States Constitution does not require that a suspect in a pre-indictment lineup be represented by counsel, whether retained or represented. . . . In light of this rule, there is no federal constitutional violation where police fail to provide notice to counsel before the lineup."); DeJesus v. Duncan, 00 Civ. 2095, 2000 WL 1654853 at *1 (S.D.N.Y. Nov. 3, 2000) ("Petitioner's first claim is that he was denied his Sixth Amendment right to counsel because the police conducted a line-up in the absence of his counsel even though counsel had specifically told the police that he wanted to be present at any line-up. This claim is without merit because the right to counsel does not arise until the institution of judicial proceedings. Because the case was still in the investigatory stage at the time that the line-up was conducted, and petitioner had not been formally charged with any crime, there was no requirement that an attorney be present at the lineup."); Lewis v. Strack, 97 Civ. 7787, 1998 WL 404793 at *2 n. 3 (S.D.N .Y. July 17, 1998) (Scheindlin, D.J.) ("The right to counsel, however, did not attach for the April robbery, as criminal proceedings had not begun and petitioner was not even a suspect in the April crime. Therefore, petitioner's [denial of Sixth Amendment right to counsel at the line-up] claim for habeas relief may be denied on these grounds alone."); Green v. Artuz, 990 F. Supp. 267, 272 n. 6 (S.D.N.Y. 1998) ("Petitioner was not indicted until after he was identified at the line-up. It is well established that an accused does not have a Sixth Amendment right to counsel prior to the State's commencement of formal adversarial proceeding against him.").
Since Bueno's Sixth Amendment right to counsel did not attach at the line-up, there can be no claim of ineffective assistance of counselk. Thus, Bueno's claim that his Sixth Amendment right to counsel was violated, or that counsel was ineffective, because of counsel's failure to attend the line-up has no merit and habeas relief should be denied on this claim.
Where there is no right to counsel, there can be no claim of ineffective assistance of counsel. See Claudio v. Scully, 982 F.2d 798, 802 (2d Cir. 1992) ("A defendant cannot prevail on an ineffective assistance of counsel claim when the constitutional right to counsel has not attached."), cert. denied, 508 U.S. 912, 113 S.Ct. 2347 (1993). Courts have applied this doctrine both to pre-indictment proceedings, see e.g., Claudio v. Scully, 982 F.2d at 802; United States v. Chen, 104 F. Supp.2d 329, 331 (S.D.N.Y. 2000) (no Sixth Amendment right to counsel at police interview, and therefore, "no matter how deficient [counsel's] performance might have been, [defendant] cannot argue that he was deprived of his Sixth Amendment right to effective counsel"); Nickel v. Hannigan, 869 F. Supp. 875, 878 (D. Kan. 1994) ("A defendant simply cannot prevail on an ineffective assistance of counsel claim when the constitutional right to counsel has not attached. . . . A defendant must have a right to counsel before relief can be obtained for the ineffective assistance of counsel."), aff'd, 97 F.3d 403 (10th Cir. 1996), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997); see also, e.g., Stuart v. United States Department of Justice, No. 01-CV-0216, 2002 WL 450080 at * 1 (W.D.N.Y. Jan 7, 2002) (in a deportation hearing "where there is no right to counsel there can be no constitutional violation predicated upon the ineffective assistance of counsel"); Parsons v. Galetka, 57 F. Supp.2d 1151, 1166 (D. Utah 1999) ("There is no right to counsel when a witness views a photograph lineup. Therefore, the petitioner in this case has no valid claim of a violation of his constitutional rights because counsel was not present at the witness interviews.") (citation omitted); Strouse v. Leonardo, 715 F. Supp. 1170, 1177 (E.D.N.Y. 1989) (McLaughlin, D.J.), affd in part vacated in part on other grounds, 928 F.2d 548 (2d Cir. 1991); and to post-conviction or collateral appeal proceedings, see, Z Coleman v. Thompson, 501 U.S. 722, 752, 11 S.Ct. 2546, 2566 (1991) ("There is no constitutional right to an attorney in state post-conviction proceedings. Consequently, a petitioner cannot claim constitutionally ineffective assistance of counsel in such proceedings."); Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 1301 (1982) ("Since respondent had no constitutional right to counsel [for discretionary state appeals], he could not be deprived of the effective assistance of counsel by his retained counsel's failure to file the application timely."); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 375-76 (S.D.N.Y. Oct. 7, 1999) (Patterson, D.J. Peck, M.J.) (Petitioner "had no constitutional right to counsel for a state collateral attack. . . . Thus [his] counsel cannot be ineffective for failing to bring a CPL § 440.10 collateral attack on the ground of newly discovered evidence."); Veras v. Strack, 58 F. Supp.2d 201, 208-09 (S.D.N.Y. July 20, 1999) (Baer, D.J. Peck, M.J.) ("Since [petitioner] had no federal Constitutional right to counsel for his discretionary appeal to the New York Court of Appeals, counsel's alleged ineffectiveness on such an appeal does not violate any federal Constitutional right to counsel (i.e., only where the federal Constitution mandates appointment of counsel does counsel's ineffectiveness deprive a criminal defendant of Constitutional rights).").
Even if the Court were to perform a traditional analysis under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the result would be no different. For a discussion of the Strickland standard see e.g., Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-18 n. 25 (S.D.N.Y. May 31, 2002) (Peck, M.J.) ( cases cited therein).
Counsel's absence from Bueno's line-up did not result in any prejudice under the second prong of the Strickland standard. First, the cab driver, Hincapie, had already identified Bueno from police photographs before he identified him a second time at the line-up. (Ex. 0: Marquez: Wade Tr. 17-20.) Further, Hincapie was familiar with Bueno "from driving him a lot of time[s] to 113th Street." (Perez: Wade Tr. 55-56.) The trial judge held that the line-up was not unduly suggestive, reasoning in part that Hincapie was familiar with Bueno. (Wade Tr. 137.) Hidalgo, the other witness who identified Bueno, also knew Bueno; both Bueno and Hidalgo admitted to having dealt drugs together as recently as six months before the murder. (Ex. I: Bueno 1st Dep't Br. at 3.) As both men already knew Bueno, the absence of counsel would not have affected their identification of Bueno at the line-up. And the only issue as to the line-up's fairness that counsel raised at the Wade hearing — the appearance of the fillers — was decided adversely to Bueno by the trial judge upon review of the photographs of the line-up. Bueno has never suggested any way in which the presence of his counsel at the line-up would have resulted in a different outcome at the Wade hearing or at the trial. Thus, he has not shown prejudice.
CONCLUSION
For the reasons discussed above, the Court should deny Bueno's petition for a writ of habeas corpus. Since Bueno has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should not issue. 28 U.S.C. § 2253.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 service 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 the Court, with courtesy copies delivered to the chambers of the Honorable Shira S. Scheindlin, 500 Pearl Street, Room 1050, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Scheindlin. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Am, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct 86 (1994); Roldany. Racette, 984 F.2d 85, 89 (2dCir. 1993); Frankv. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthvv. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636 (b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).