Opinion
02 Civ. 8642 (SAS).
August 27, 2007
For Petitioner: Robert J. Boyle, Esq., New York, NY.
For Respondent: Allison Gill, Assistant Attorney General, New York, NY.
OPINION AND ORDER
I. INTRODUCTION
Kevin Bussey ("petitioner") brings this habeas corpus petition pursuant to 28 U.S.C. § 2254 ("section 2254") alleging that he is being held in state custody in violation of his federal constitutional rights. Petitioner's state custody arises from a judgment of conviction entered on June 11, 1997, in New York State Supreme Court, New York County, convicting him of seven counts of Robbery in the First Degree. Petitioner was sentenced, as a second felony offender, to concurrent prison terms of twenty-five years on four of the robbery counts, to run consecutively to concurrent prison terms of fifteen years on the remaining three robbery counts. Petitioner's conviction was affirmed by the Appellate Division, First Department, and leave to appeal to the New York Court of Appeals was denied. Petitioner is currently incarcerated at the Green Haven Correctional Facility pursuant to this judgment of conviction.
See People v. Bussey, 714 N.Y.S.2d 673 (1st Dep't 2000), lv. denied, 96 N.Y.2d 732, 722 N.Y.S.2d 799 (2001).
In October 2002, petitioner, through counsel, filed his section 2254 petition arguing that: (1) he was denied the right to testify on his own behalf; (2) he was denied the effective assistance of trial counsel when his attorney did not advise him of his right to testify and took an adverse position on the issue of his testifying at trial; (3) he was denied the effective assistance of appellate counsel when counsel failed to raise, on appeal, the issue of trial counsel's ineffectiveness; (4) he was denied due process when the trial court refused to sever the counts in the indictment and refused to instruct the jurors not to commingle the evidence; and (5) he was denied due process when the court sentenced him in retaliation for exercising his right to go to trial.
The petition was referred to Magistrate Judge Michael H. Dolinger who issued a Report and Recommendation ("R R") on June 9, 2004. In his R R, Judge Dolinger found all of petitioner's claims to be without merit and recommended that the petition be denied in its entirety. With the assistance of counsel, Bussey filed the following objections to the R R: (1) that he was denied his right to testify; and (2) he received ineffective assistance of counsel resulting from an actual conflict of interest between him and his trial attorney. After reviewing the R R and the parties' submissions, I found that the record as it stood was not sufficiently developed to conduct a thorough de novo review of petitioner's right to testify and ineffective assistance of counsel claims. I ordered an evidentiary hearing on these issues, which was held on September 15, 2004. Petitioner's remaining claims were dismissed in accordance with the findings of Magistrate Judge Dolinger.
See R R at 3.
See Statement of Objections to Report and Recommendation, dated July 9, 2004 ("Objections").
See Bussey v. Greiner, No. 02 Civ. 8642, 2004 WL 2827621, at *6 (S.D.N.Y. Dec. 8, 2004).
II. BACKGROUND
A. Trial Proceedings
The issue concerning Bussey's right to testify surfaced on May 5, 1997, after both sides rested but before their closing arguments. At the start of the proceedings, Bussey addressed the trial judge directly and complained at length about various aspects of his attorney's performance. He also complained that his trial attorney prevented him from testifying. The following colloquy between Bussey and the trial judge ensued:
See Trial Transcript ("Tr.") at 407-10.
THE DEFENDANT: So I ask that, you know, can I speak on my own behalf? She [trial counsel] said, no, you can't do that. You know, what is it that I can do? I mean, I'm willing to testify. I mean just get up there and testify on my own behalf, you know? I mean how much more can I lose?
THE COURT: Well, that's a decision you have to make after talking to your lawyer. . . . And now, whether or not you want to testify, that's something that you have to discuss with [trial counsel] Ms. Calvello. And you make that decision. I'll let you make the record to put your feelings on the record so that's part of the record for appeal. So we have that. But if you want to discuss testifying with Ms. Calvello —
THE DEFENDANT: She just told me it was too late. She said it's closed.
THE COURT: Well, discuss it again with your client.
Id. at 410-11
Susan Calvello, petitioner's trial attorney, gave the following response:
MS. CALVELLO: Mr. Bussey and I already had discussion prior to the time that I rested. Obviously, I put on a witness prior to that. We had a discussion and at that point of our discussion, Mr. Bussey agreed that he would not testify and we would just allow that one witness to testify on his behalf.
So we did have discussions at various points and before I rested, we had that discussion. And it was something that — we decided not to testify.
THE COURT: Well, he is saying now that he wants to testify; is that right, Mr. Bussey?
THE DEFENDANT: Yes.
THE COURT: Well, I suggest you have another conversation with him now.
(short pause)
Id. at 413.
After the first short pause, Calvello again addressed the court.
MS. CALVELLO: If we are going to start to re-open the case, Judge, then take Mr. Bussey in the back. It's going to take a long time. It's not something that we were prepared to do right now. And again, as far as I was concerned, the defense had rested. We already discussed the fact that Mr. Bussey was not going to testify in this case. We were ready to proceed to summation. If after summation and whatever the verdict is going to be, Mr. Bussey has an appeal issue. I can only state for the record that during the twelve months this case has been pending, we have discussed trial issues more than once. We have discussed the fact that Mr. Bussey would or would not testify and his decision on the day we rested was he would not testify.
So I ask the Court that we just continue and proceed. I am ready to sum up in this case and we continue on course. He made a record; has the appeal issue and that is something that is preserved for Mr. Bussey.
[ADA] BOGDANOS: People join in the defense's request.
THE COURT: Okay. Before we have any further discussion, would you just bring the jury in and ask them to sit in the juryroom please.
(short pause)
MS. CALVELLO: We are ready to proceed with summations.
THE COURT: All right. So you have discussed it —
MS. CALVELLO: We have.
THE COURT: — With your client and you're ready to proceed to summation? The defendant will not be testifying?
MS. CALVELLO: That's correct.
Id. at 414-15.
Bussey remained silent after Calvello informed the court that he would not be testifying.
B. Proceedings Before this Court
1. The Evidentiary Hearing
To supplement the record, an evidentiary hearing was held on September 15, 2004. In attendance were Bussey, his present attorneys Robert J. Boyle and Elizabeth M. Fink, Assistant Attorney Generals Luke Martland and Kimberly Morgan, and his former trial attorney Susan Calvello. Bussey first took the stand and testified that he told Calvello that if his case went to trial, he wanted to testify. In response, Calvello allegedly informed Bussey that it would "be like suicide" for him to testify. When asked to describe the tone of his conversations with Calvello, Bussey stated:
See 9/15/04 Hearing Transcript ("Hr. Tr.") at 11.
Id. at 12.
A. Every time we spoke, it was very — it was a[n] argument. We argued consistently . . . Every time I would tell her that I wanted to testify, she would tell me that she is not going to let me take the stand. And there is no more to talk about. And I would say, you know, you can't do that. And she said, well, that's how I feel about it, you are not going to testify.
Q. Were the discussions heated?
A. Yes, at times. She just said, listen, you are not going to testify, and walked away. Quite a few times, you know, she just said, you are not going to do it, and walked away. A few times she told me, don't even start, you know, Mr. Bussey, don't even start, I am not putting you on the stand.
Id. at 13.
When asked if Calvello ever told him that the decision whether to take the stand was his and his alone, Bussey responded "Never." Bussey further testified that he believed he could not overrule his attorney's decision about taking the stand.
Id. at 16.
I had no idea that it was my decision whether I testified or not, no. She never said that. And she never explained that to me. She always said that she wasn't going to let me take the stand. And she went as far as telling me that if I didn't like the decision that she made, then I had a[n] appeal issue.
Id.
Bussey also explained what happened during the short pauses in the trial proceedings. During the first short pause, Calvello allegedly told Bussey that she did not prepare for him to testify, that she was not going to let him testify, and that if he didn't like her decision, he had an appeal issue. Bussey understood the reference to an "appeal issue" to mean that Calvello wasn't going to let him testify and that if he didn't like her decision, he would have to "appeal it or fight it in court." During the second short pause, Bussey claims that he again informed Calvello that he wanted to testify and she again denied his request, telling him that it was too late for him to testify. After the second short pause, Bussey remained silent when the judge confirmed that he would not be testifying. Bussey offered the following explanation for his silence:
See id. at 19.
Id. at 20.
See id. at 20-21.
Q. And then Ms. Calvello says this, the Court asks: The defendant will not be testifying, Ms. Calvello? Ms. Calvello says: That's correct. And summations begin. Why didn't you get up at that point and say, no, I want to testify, or something to that effect?
A. For one, I had no idea that I can just jump up and erupt the court like that. I also thought that being that she said that I couldn't testify, and she wasn't going to let me, I thought that that was it. The judge never said, you know, asked me if I still wanted to testify, or was a decision made by me and her. Nobody said anything. She just said, we [are] going to proceed, and that was it. I had no idea I could just jump up in the court and say that I still wanted to testify.
Id. at 22.
On the stand, Calvello completely contradicted Bussey's testimony. She testified that, before trial, Bussey never expressed an interest in testifying. Calvello informed the Court that the first time she learned of Bussey's desire to testify was when Bussey addressed the judge directly, shortly before closing arguments. During one of the two short pauses, Calvello claims she asked Bussey if he wanted to testify and the answer was no. I then asked Calvello what she meant by an "appeal issue." Calvello provided the following response:
See id. at 33, 34 ("So if he wanted to testify, he could have done that at any point. And he never, ever asked me or requested during the pendency of the case to testify."). See also id. at 41 ("Again, the only thing I can tell you is that my recollection is, he never wanted to testify. He never said anything to me during voir dire to — when we left before summing up, that he wanted to testify.").
See id. at 35.
See id. at 37, 58 ("Again, the only thing I can tell you is that during the, one of the pauses, I don't know which one, I was directed by Judge Sudolnik to ask Mr. Bussey if he wanted to testify. And he said, no. Which allowed me to proceed to summation.").
THE WITNESS: — again, the fact that he had said that, I was sitting there, I think, as I was sitting there not doing anything, any problems he had with me during the pendency of the trial, the fact that he didn't like the way the witnesses were crossed, he could take up on appeal. Because he does talk about that during the minutes.
THE COURT: I just wanted you to look at the context in which you said it. It does come [after] we discussed the fact Mr. Bussey would or would not testify. And you say: He made a record and has the appeal issue. So I just wondered if you thought that had to do with testifying.
THE WITNESS: No.
Id. at 39.
During cross-examination, the topic of Calvello's omnibus motion to sever the counts of the indictment came up. Calvello was asked whether one of the grounds in the severance motion was that Bussey would exercise his right to testify as to some of the robberies if there was a severance. At this point, Calvello initially appeared evasive but eventually stated that this ground was included as boilerplate language, used in every motion to sever, and was not based on a conversation she had with Bussey. In an affirmation in support of the severance motion, Calvello stated:
See id. at 48.
See id. at 49.
8. The defense requests that . . . each count of the indictment should be tried individually. The prejudice to Mr. Bussey if all counts are tried together would be overwhelming. The jury could not reach a fair and impartial verdict on any one of the counts.
Mr. Bussey will have to testify concerning some of the counts but not all of the counts. If all the counts are tried together, Mr. Bussey would probably be forced not to testify at all.
Attorney's Affirmation ¶ 8, attached to the 9/22/04 Letter from Assistant Attorney General Kimberly Morgan.
2. Order Staying the Petition to Permit Exhaustion
After the hearing, I held that petitioner's claims regarding his right to testify and trial counsel's ineffectiveness had not been fully exhausted, stayed the petition with respect to those claims, and directed petitioner to return to state court and raise them in a motion to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 ("section 440.10"). Although the testimony provided by the witnesses at the evidentiary hearing was recounted, no factual findings were made by this Court. Instead, this Court directed Bussey to "supplement his § 440.10 motion with the transcript of the hearing before this Court."
See Bussey, 2004 WL 2827621, at *6.
Id.
C. Motion to Vacate the Judgment
On April 25, 2005, pursuant to section 440.10, petitioner filed a motion to vacate the judgment in state court raising his right to testify and ineffective assistance of counsel claims. The District Attorney's Office filed an affirmation in opposition and petitioner filed a reply memorandum. By Order dated September 20, 2005, the state judge who previously presided over the trial, Judge Joan Sudolnik, denied petitioner's section 440.10 motion. The state court did not conduct its own evidentiary hearing, but instead relied on the trial transcripts and the minutes of the hearing conducted before this Court.
See Exhibit A to the Declaration of Chelsea Chaffee, Assistant Attorney General, in Opposition to Petition for a Writ of Habeas Corpus ("Chaffee Decl.").
See id., Ex.C.
See id., Ex. D.
See 9/25/05 Order of Judge Joan Sudolnik, Ex. E to the Chaffee Decl. ("Sudolnik Order").
See id. at 2 ("Having reviewed the transcript of the Wade hearing and trial and the minutes of the hearing conducted before Judge Scheindlin, I make the findings of facts and conclusions of law which follow.").
Judge Sudolnik reviewed the trial record and recounted the first time petitioner addressed the court directly as follows:
As soon as he arrived in court, defendant addressed the court directly with a litany of complaints. He did not get an acceptable plea offer. Calvello had not put enough effort into the case. She had not taken the time to learn anything about him as a person. She treated him like an illiterate. He was dissatisfied with her cross-examination of the witnesses. He was dissatisfied with what he believed would be her arguments on summation. He wanted to "definitely put on the minutes that I am not satisfied with it at all." Defendant ended his diatribe by saying he wanted to testify, because "how much more can I lose?"
Id. at 3 (emphasis in original).
Judge Sudolnik found that "defendant and Calvello were in disagreement over whether defendant should testify," and that one could reasonably infer that "defendant was also in conflict with himself." With regard to petitioner's right to testify, the court stated:
Id.
Defendant was twice advised by the court that he had to decide whether or not he wanted to testify and he was urged to consult with his attorney before making that decision. Defendant's claim that he did not understand what I meant when I told him that he had to make the decision is not credible. Indeed, defendant acknowledged that the decision belonged to him when he testified at the hearing before Judge Scheindlin. Recounting one of the many discussions he claimed he had had with Calvello concerning this issue, defendant stated: "I would tell her that I wanted to testify, she would tell me that she is not going to let me take the stand. And there is no more to talk about and I would say, you know, you can't do that."
Id. at 4.
The court found incredible petitioner's claim that he did not object to Calvello's statement informing the court that petitioner would not be testifying because he did not know he could interrupt the proceedings to do so. The court reasoned:
Defendant contends that Calvello prevented him from testifying when she told the court that she had discussed the matter with defendant and then represented that he would not be testifying. Defendant claims that he failed to object to Calvello's statement because he did not know he could just jump up and erupt [sic] the court. However, defendant had not expressed any hesitation about addressing the court directly and he had just disrupted the court on two occasions. The only reasonable conclusion to draw from defendant's silence is that he accepted Calvello's advice that the defense case was stronger without the jury hearing from him and learning about his criminal history.
Id.
Finally, the trial court rejected petitioner's argument that Calvello's statement at trial that petitioner could appeal was an acknowledgment that she was preventing him from testifying. After recounting Calvello's experience as a criminal defense attorney, the court held that "Calvello could not have meant that defendant could appeal her decision barring him from testifying since that was not a decision she could make." The court ultimately ruled:
Id. at 5 (emphasis in original).
Having observed the dynamic of the situation as it unfolded before me, I find that defendant knew that the decision to take the stand was his and that Calvello strenuously urged him not to testify. Ultimately, however, the decision to remain silent was made by defendant and he was not prevented from testifying by anything Calvello said or did. As the Appellate Division held when addressing this issue on appeal, defendant was not foreclosed from testifying. He was dissuaded from doing so by an experienced attorney. While defendant and his attorney had a conflict of opinion concerning the best course to follow, their disagreement did not constitute a conflict of interest.
Id.
The court held that petitioner received effective assistance of counsel under both the state and federal standards. Accordingly, the court denied petitioner's section 440.10 motion to vacate the judgment of conviction.
See id. (citing People v. Benevento, 91 N.Y.2d 708 (1998) and Strickland v. Washington, 466 U.S. 668 (1984)).
See id. Petitioner sought leave to appeal this decision, which was denied by the Appellate Division on June 6, 2006. See Chaffee Decl., Exs. G and H.
III. LEGAL STANDARDS
A. The Antiterrorism and Effective Death Penalty Act of 1996
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA provides that a federal court can grant a writ of habeas corpus to a state prisoner only if the state court's denial of relief "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." A petitioner may also be entitled to habeas relief if the state court adjudication "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."
As explained by the Supreme Court, a state-court decision is "contrary to" clearly established federal law in the following instances:
First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.
Williams v. Taylor, 529 U.S. 362, 405 (2000).
With regard to the "unreasonable application" prong, the Supreme Court has stated that
a state-court decision can involve an "unreasonable application" of this Court's clearly established precedent in two ways. First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.
Id. at 407.
In order for a federal court to find a state court's application of Supreme Court precedent to be unreasonable, the state court's decision must have been more than incorrect or erroneous; "[t]he state court's application of clearly established law must be objectively unreasonable."
Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
In applying the "unreasonable application" test, a federal court should ask "whether the state court's application of clearly established federal law was objectively unreasonable." This standard "`falls somewhere between merely erroneous and unreasonable to all reasonable jurists.'" While the test requires "`[s]ome increment of incorrectness beyond error, . . . 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.'" Thus, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."
Williams, 529 U.S. at 409. Accord Harris v. Kuhlman, 346 F.3d 330, 344 (2d Cir. 2003).
Overton v. Newton, 295 F.3d 270, 276 (2d Cir. 2002) (quoting Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)).
Id. (quoting Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (emphasis in original)).
Williams, 529 U.S. at 411.
B. Ineffective Assistance of Counsel
A petitioner seeking to attack his sentence based on ineffective assistance of counsel must: (1) show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and (2) "affirmatively prove prejudice," namely, demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
Strickland, 466 U.S. at 693-94.
In analyzing a claim that counsel's performance fell short of constitutional standards, "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument." Instead, the court "must `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. . . .'" As explained by the Supreme Court,
strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.
Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001).
Id. (quoting Strickland, 466 U.S. at 689).
Strickland, 466 U.S. at 690-91.
Moreover, "[i]n assessing the attorney's performance, a reviewing court must judge [her] conduct on the basis of the facts of the particular case, `viewed as of the time of counsel's conduct,' and may not use hindsight to second-guess [her] strategy choices." Thus, a petitioner cannot prevail on a claim of ineffective assistance merely because he disagrees with his counsel's strategy.
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 690).
See Jones v. Barnes, 463 U.S. 745, 751-52 (1983) (explaining that an indigent appellant does not have a constitutional right to compel appointed counsel to press every nonfrivolous point on appeal and recognizing "the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review"); Mayo, 13 F.3d at 533 ("[I]t is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.").
A habeas 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." However, "[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance to which [a] [p]etitioner [i]s entitled." Additionally, "[a]ctions or omissions by counsel that `might be considered sound trial strategy' do not constitute ineffective assistance." This standard applies to claims that an attorney rendered ineffective assistance by preventing a defendant from testifying or failing to adequately advise a defendant as to his right to testify. Finally, even if an attorney's performance were objectively unreasonable and unprofessional, the defendant must still prove prejudice. That is, the defendant must show "`a reasonable probability' that, but for the deficiency, `the result of the proceeding would have been different.'"
Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000).
Aparicio, 269 F.3d at 99 (quotations and citations omitted).
Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 689).
See Brown v. Artuz, 124 F.3d 73, 79 (2d Cir. 1997).
Aparicio, 269 F.3d at 95 (quoting Stricklánd, 466 U.S. at 694).
C. Conflict-Free Counsel
The right to the effective assistance of counsel includes the right to be represented by an attorney who is free from conflicts of interest. This right may be violated if the attorney has "an actual conflict of interest that adversely affect[s] the attorney's performance." "An attorney has an actual, as opposed to a potential, conflict of interest when, during the course of the representation, the attorney's and defendant's interests diverge with respect to a material factual or legal issue or to a course of action."
See Wood v. Georgia, 450 U.S. 262, 271-72 (1981); Cuyler v. Sullivan, 446 U.S. 335, 356 (1980) ("In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance.").
United States v. Levy, 25 F.3d 146, 152 (2d Cir. 1994).
United States v. Schwarz, 283 F.3d 76, 91 (2d Cir. 2002) (quotation marks and citation omitted). Accord Winkler v. Keane, 7 F.3d 304, 307 (2d Cir. 1993).
The second prong of the Strickland test generally requires a showing of prejudice. A petitioner claiming ineffective assistance of counsel based on a conflict of interest, however, is entitled to a presumption of prejudice if he can prove: (1) that his attorney labored under an "actual conflict of interest; and (2) that the "actual conflict of interest affecter his lawyer's performance."
Cuyler, 446 U.S. at 350 ("In order to demonstrate a violation of his Sixth Amendment rights, a defendant must establish that an actual conflict of interest adversely affected his lawyer's performance."). Accord Mickens v. Taylor, 535 U.S. 162, 172 n. 5 (2002) (defining "actual conflict" as "a conflict that adversely affects counsel's performance").
The Second Circuit has established a three-step analysis for evaluating claims of ineffectiveness arising from actual conflicts of interest. First, a petitioner must establish that an actual conflict of interest existed. An actual conflict of interest arises when the interest of the attorney and his client "diverge with respect to a material factual or legal issue or to a course of action." Second, a petitioner must establish an "actual lapse in representation" that resulted from the conflict. An "actual lapse in representation" is demonstrated by the existence of a "plausible alternative defense strategy" not pursued by counsel. "The term `plausible defense strategy' does not embrace all possible courses of action open to a defense attorney; it refers to those which a zealous advocate would reasonably pursue under the circumstances." Finally, a petitioner must show causation. As explained by the Second Circuit:
See United States v. Moree, 220 F.3d 65, 69 (2d Cir. 2000).
Cuyler, 446 U.S. at 356, n. 3.
Id. at 349.
Moree, 220 F.3d at 69.
Lopez v. Scully, 58 F.3d 40, 42 (2d Cir. 1995).
The test requires a defendant to demonstrate that some plausible alternative defense strategy or tactic might have been pursued, and that the alternative defense was inherently in conflict with or not undertaken due to the attorney's other loyalties or interests.
Id. at 41 (quotation marks and citation omitted).
IV. DISCUSSION
A. Petitioner's Supplemental Memorandum of Law
In his supplemental memorandum of law, petitioner first argues that AEDPA deference should not be accorded to the trial court's factual findings made during the section 440.10 proceedings because that court did not conduct its own evidentiary hearing but instead relied on the transcript of the hearing held in this Court. Petitioner argues that because the trial court did not observe the demeanor of petitioner and Calvello at the hearing, "[f]acts are before this court — the witnesses' demeanor — that were not before the state court." In the alternative, petitioner argues that even if this Court applies AEDPA deference to the trial court's findings of fact, it may still make it's own findings regarding the witnesses' demeanor "when it independently assesses whether the state court's decision was premised upon an unreasonable determination of the facts." Finally, petitioner argues that, regardless of the witnesses' demeanor at the hearing, "the record alone establishes by clear and convincing evidence an actual conflict and a deprivation of petitioner's right to testify."
Supplemental Memorandum of Law in Support of Petition for Writ of Habeas Corpus at 5.
Id. at 6.
Id.
Petitioner then raises the following two substantive claims: (1) that he was denied the right to conflict-free representation; and (2) that he was denied the right to testify. With respect to the first claim, petitioner argues that an actual conflict of interest arose when Calvello "falsely told petitioner that it was too late for him to testify, never informed him that the right was personal to him, and actively opposed, on the record, his request that he be permitted to testify." Petitioner further argues that "where, as here, an attorney factually opposes a claim made by a petitioner that goes to the merits of his case, the attorney has an actual conflict." According to petitioner, Calvello "impermissibly crossed that line" and "`stopped acting as an advocate for her client'" and became petitioner's adversary. Because there was an actual conflict between petitioner and counsel, petitioner claims that he need not prove prejudice but must merely demonstrate that the conflict resulted in a "`lapse in representation.'"
Id. at 7-8.
Id. at 19 (citing, inter alia, Guzman v. Sabourin, 124 F. Supp. 2d 828, 834-35 (S.D.N.Y. 2000).
Id. (quoting Guzman, 124 F. Supp. 2d at 836).
Id. at 20 (quoting United States v. Iorizzo, 786 F. 2d 52, 58 (2d Cir. 1986)).
Petitioner next argues that he was denied effective assistance of counsel when Calvello prevented him from testifying at trial. Petitioner describes his thwarted testimony as follows:
See id. at 21 ("Should this Court find that there was not an actual conflict, the writ should nonetheless be granted because petitioner was denied effective assistance of counsel when attorney Calvello prevented him from testifying at trial.").
Mr. Bussey would have testified that he did not commit some of the robberies alleged in the indictment. In addition, he would have offered evidence in support of the affirmative defense that during some of the robberies he did commit, no gun was used, or the gun was inoperable[.]
Id. at 22.
In petitioner's view, there is a "`reasonable probability'" that such evidence would have yielded a different result, "`sufficient to undermine confidence in the outcome.'"
Given the lack of other evidence on the issue, it is "reasonably probable" that petitioner's testimony would have raised a reasonable doubt about either his presence at some of the robberies or, at a minimum, reduced some of his convictions from robbery in the first degree to robbery in the second degree, a Class C felony. Accordingly, petitioner was prejudiced by counsel's actions preventing him from testifying at trial thereby warranting issuance of the writ.
Id. at 23 (quoting Strickland, 466 U.S. at 694).
Id. at 23-24.
B. The State Court's Factual Findings are Entitled to Deference
In a federal habeas proceeding, "a determination of a factual issue made by a State court shall be presumed to be correct," and a petitioner can only rebut this presumption by "clear and convincing evidence." When an issue has been adjudicated on the merits in state court based on a factual determination made by that court, such decision "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding."
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
Petitioner argues that AEDPA deference is not warranted in this case because the factual findings made by the trial court were not based on that court's opportunity to observe the demeanor of the witnesses at the evidentiary hearing, but were instead based on the transcript of that proceeding. Petitioner's argument is unavailing, however, as the factual findings of the trial court were based both on the transcript of the evidentiary hearing and on its own observation of events as they unfolded during the actual trial. This Court must therefore defer to the factual findings of the trial court in the absence of clear and convincing evidence to the contrary.
This case is somewhat unique in that the evidentiary hearing was conducted by this Court while the factual findings regarding the testimony at that hearing were made by the state court. However, contrary to petitioner's arguments, AEDPA deference to the factual findings and credibility determinations of the state court is still warranted. Arguably, the trial court was in a better position than this Court to assess the hearing testimony because it could evaluate that testimony in the context of what was observed during the trial. The trial court had the benefit of observing and interacting with the parties at the time of trial. The trial court, therefore, could view the testimony of the witnesses at the hearing within the context of the entire trial, not in isolation as this Court did. Thus, the factual findings of the state court are entitled to a presumption of correctness.
Petitioner has failed to rebut this presumption by clear and convincing evidence. Petitioner simply disagrees with the trial court's factual findings and credibility determinations and argues that the record supports his version of the events. Mere disagreement, however, does not constitute the type of clear and convincing evidence needed to rebut the presumption of correctness. Thus, pursuant to section 2254(e)(1), deference to the factual findings and credibility determination of the trial court is appropriate here.
C. There Was No Actual Conflict of Interest
Petitioner argues that there was an actual conflict of interest between himself and his trial attorney when she refused to permit petitioner to testify in his own defense. In particular, this conflict arose when petitioner's trial attorney: (1) falsely told petitioner that it was too late for him to testify; (2) never informed him that the right was personal to him; and (3) actively opposed, on the record, his request to testify. Petitioner further argues that this conflict adversely affected counsel's performance because she failed to pursue a viable defense strategy. The state court rejected this argument, holding that "[w]hile defendant and his attorney had a conflict of opinion concerning the best course to follow, their disagreement did not constitute a conflict of interest." This holding was not contrary to, or based on an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. As a result, petitioner is not entitled to habeas relief.
Sudolnik Order at 5.
The Second Circuit has held that a defendant cannot create a conflict of interest simply by criticizing his attorney's performance at trial. The defendant in White argued that his request for new counsel and his complaints about his attorney's performance created an actual conflict of interest that adversely affected his attorney's performance. The Second Circuit rejected this argument, stating that:
See United States v. White, 174 F.3d 290, 296 (2d Cir. 1999).
See id. at 295.
Under these circumstances, we decline to adopt any broad rule that would suggest that, simply by expressing dissatisfaction with his attorney's performance, a defendant can create a "conflict of interest" that can be said to require the attorney to choose between advancing the attorney's own cause and that of her client.
Id. at 296.
The Second Circuit distinguished the situation presented in White from the one presented in Lopez v. Scully, wherein an actual conflict of interest was found.
This conclusion is fully in accord with our decision in Lopez. Crucial to our finding of a conflict of interest in that case was the defendant's allegation that his attorney had coerced him into pleading guilty. Such a claim is extremely serious and, we would hope, unusual. By contrast, in this case, White merely expressed disagreement with his attorney over whether to file certain motions, to pursue certain evidentiary leads, to object to the introduction of certain evidence at trial, and to call certain witnesses at trial and at a sentencing hearing. A defendant's decision to raise complaints of this nature before the trial court does not give rise to a conflict of interest between the defendant and his attorney.
58 F.3d 38, 43 (2d Cir. 1995).
White, 174 F.3d at 296.
As in White, petitioner has failed to establish that an actual conflict between himself and Calvello adversely affected his counsel's performance. Petitioner changed his mind and ultimately decided not to testify, and it was for this reason that Calvello did not pursue this trial strategy. As in White, "in an effort to obtain the benefit of Cuyler's presumption of prejudice — and thereby avoid the Strickland requirement that prejudice be affirmatively proven — [petitioner] has essentially characterized a routine disagreement with his appointed counsel over defense strategy as a conflict of interest." Thus, the state court's holding — that petitioner and Calvello did not have an actual conflict of interest — was neither contrary to, nor based on an unreasonable application of, clearly established federal law. Furthermore, the state-court decision did not involve an unreasonable determination of the facts of this case. Petitioner is therefore not entitled to habeas relief on this basis.
Id.
D. Petitioner's Ineffective Assistance of Counsel Claim
Petitioner next argues that he was denied the effective assistance of counsel because counsel prevented him from testifying at trial. Petitioner raised this claim in his motion to vacate the judgment and the state court rejected it under both the state and federal standards for ineffective assistance. The trial court's rejection of this claim was a proper application of federal law and was a reasonable determination of the facts of the case. Accordingly, petitioner is not entitled to habeas relief on this basis.
Calvello testified that she had advised petitioner that the decision regarding whether to testify was his to make. This testimony was credible and is supported by the fact that Calvello is an experienced defense attorney. It is simply implausible that an attorney with thirteen years of defense experience would not advise her client of one of the most basic constitutional rights associated with trial. Additionally, the court advised petitioner that the decision regarding whether to testify was one that he had to make, in consultation with counsel. The trial court's finding that petitioner understood that it was his decision is entitled to deference, as that finding was based on the court's observation of petitioner at trial.
Petitioner has failed to demonstrate that he was prejudiced by any alleged error by counsel. Petitioner argues that if he had been permitted to testify, it is reasonably likely that he would have been acquitted of some counts or convicted of lesser crimes. This argument is unpersuasive. If petitioner testified, his criminal history, including two prior convictions for robbery, would have been admitted to impeach his credibility. Once the jurors heard of petitioner's prior robbery convictions, it is highly unlikely that they would have acquitted petitioner for the exact same offense (robbery), especially in light of the eyewitness testimony offered at trial. Furthermore, petitioner advised the trial court that he would have testified that he committed some of the robberies but did so using a fake gun. Such testimony would have irreparably damaged petitioner's defense. To admit to the jury that he had committed some of the robberies would have undermined any other defense for the remaining charges in the same way that evidence of his criminal history would have. Such testimony would have undoubtedly undermined his uncorroborated alibi defense. Moreover, the jury would have likely believed that if petitioner had committed some of the robberies, he likely committed all of them.
It is therefore not reasonably likely that, had petitioner testified in his own defense, the jury would have acquitted him of some of the charges or would have returned a guilty verdict on lesser charges for any of the counts. It is unlikely that the jury would have credited any of petitioner's self-serving testimony and the introduction of petitioner's prior robbery convictions would have fatally undermined any chance at acquittal. Thus, even if his counsel was ineffective in preventing him from testifying, petitioner was not prejudiced by this lapse in representation. Accordingly, the state court's rejection of petitioner's ineffective assistance claim was a proper application of clearly established federal law and a reasonable application of the facts of this case. Petitioner is therefore not entitled to federal habeas relief on this basis.
V. CONCLUSION
Finally, there is the question of whether to grant a certificate of appealability. For a certificate of appealability to issue, petitioner must make a "substantial showing of the denial of a constitutional right." "A "substantial showing" does not require a petitioner to demonstrate that he would prevail on the merits, but merely "`that reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Reasonable jurists could differ as to whether there was an actual conflict of interest regarding petitioner's right to testify in light of the circumstances leading to his decision not to testify. Thus, there is a debatable issue regarding petitioner's conflict of interest claim. Accordingly, I hereby grant a certificate of appealability as to this issue only. The Clerk of the Court is directed to close this case.
Middleton v. Attorneys General of the States of New York and Pennsylvania, 396 F.3d 207, 209 (2d Cir. 2005) (per curiam) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).
SO ORDERED: