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finding that "[t]rial counsel's summation did not 'so undermine the proper functioning of the adversarial process [such] that the trial cannot be relied on as having produced a just result.'"
Summary of this case from Popal v. SuperintendentOpinion
97-CV-4969 (JBW), 03-MISC-0066 (JBW)
November 11, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for writ of habeas corpus is denied. Petitioner's motion to expand the record is granted. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was charged with two counts of murder in the second degree, one count of attempted murder in the second degree, two counts of assault in the second degree, reckless endangerment in the first degree, and criminal possession of a weapon in the second degree.
The evidence supported the following statement of facts; Petitioner approached a man in a park and demanded money owed to him. Petitioner pulled a gun to expedite repayment of the debt. The debtor gave petitioner one hundred dollars, an amount equal to half the debt. The debtor resumed selling illegal narcotics in the park, Petitioner remained in the park, waiting to collect the remainder of his debt. Shortly thereafter, the debtor's supervisor and a friend entered the park and told petitioner not to bother his workers while they sold drugs. Petitioner inquired into the friend's identity. Upon not receiving a satisfactory response, petitioner shot the friend in his left arm. As the friend fled, petitioner shot him in his right hand. Turning his attention to the supervisor, petitioner shot and killed him,
Petitioner was convicted of murder in the second degree, attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second degree. He was sentenced as a second violent felony offender to a term of twenty-five years to life on the murder conviction, which was to run consecutively to concurrent prison terms of from ten to twenty years for the attempted murder conviction, from three and one-half to seven years for the second degree assault conviction, and from seven and one-half to fifteen years for the weapon possession conviction.
His conviction was affirmed on direct appeal. People v. Carty, 224 A.D. 439, 638 N.Y.S.2d 320 (2d Dept, 1996), Leave to appeal to the New York State Court of Appeals was denied.
In 1997, petitioner filed a petition for habeas corpus relief in this court based on a claim of ineffective assistance of trial counsel. In 1998, this Court appointed counsel for petitioner, The court-appointed counsel determined that petitioner could not proceed until he exhausted his state claims. The case was closed administratively until petitioner exhausted his state court claims.
Petitioner filed a pro se motion to vacate his conviction pursuant to N.Y.C.P.L. Section 440,10, He argued that his trial counsel was ineffective. The trial court denied the motion on the merits. The Appellate Division denied his application for leave to appeal.
In 1993, petitioner filed a pro se motion for writ of error coram nobis in the Appellate Division, The motion was denied.
Petitioner filed a motion to vacate his sentence pursuant to N.Y, C.P.L. Section 440.20, He argued again that his trial counsel was ineffective. The trial court denied the motion. Leave to appeal was denied.
Petitioner is represented by counsel. In his amended application for a writ of habeas corpus, petitioner claims that he was denied the effective assistance of state trial counsel based on counsel's failure to (i) call alibi witnesses, (ii) provide an adequate summation, (iii) review his presentence report, and (iv) recuse himself so that he could be a witness at trial.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 199(5 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(I) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313(2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a. federal habeas court may not issue the writ simply because mat court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Rerbary, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(c)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims, See Rose v. Lundy, 455 US. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court," Days v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims . . . so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"). In addition, the state may waive the exhaustion requirement., but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement," Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV, 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "says that a claim is `not preserved for appellate review' and then ruled `in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996), When a slate court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)), This congeries of holdings leaves it air open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence," U.S. Const, amend, VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement courts must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversaria) process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "There is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id, at 694, See also Wiggins v. Smith, 539 US. ___, No. 02-311, slip op, at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002), A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697, In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold," Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support," Strickland, 466 U.S. at 696, "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome," Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance maybe demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 1110, 112 (2d Cir. 2003),
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after Jess than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same), The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel See Eze, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 6S9,
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[1]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994), Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV, 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
VI. Analysis of Claims
A.
Petitioner's first claim is that trial counsel failed to call alibi witnesses to testify during trial. Petitioner raised this claim in a motion to vacate judgment under N.Y. C.P.L. Section 440.10. The trial court denied the motion, stating that the defendant "failed to overcome the strong presumption that defense rendered effective counsel pursuant to Strickland v. Washington and People v. Baldi, 54 N.Y.2d 137 (1981)." People v. Carty, Indictment No. 405-91 (N.Y.Sup.Ct. Sept. 11, 1998).
Trial counsel informed petitioner in a letter that he did not call petitioner's requested alibi witnesses, because "in [his] opinion they would have done more harm . . . than good," Letter from Robert Schutzman, Counselor at Law, to Anthony Carty (June 12, 1996). Trial counsel's decision not to call the alibi witnesses constituted reasonable trial strategy. The record indicates that none of petitioner's so-called alibi witnesses place petitioner at his home at the time of the murder. Testimony at trial indicated that the murder occurred between 11:10 p.m. and 11:30 p.m. The alibi witness placed petitioner in front of his house at 11:45 p.m. Given this discrepancy., trial counsel was reasonable in not calling any alibi witnesses. In some cases the alibi witnesses' testimony would have conflicted with petitioner's trial testimony. Petitioner does not offer any new evidence regarding his alibi that his trial counsel should have discovered with diligent investigation.
The trial court's finding that petitioner was not denied the effective assistance of counsel was not contrary to or an unreasonable application of Supreme Court precedent. Trial counsel's decision arguably reflected sound strategy. The claim is without merit.
B.
Petitioner claims that trial counsel failed to deliver an adequate summation. Petitioner's claim is wholly without merit. Trial counsel presented a strong, coherent summation. He attempted to discredit the People's case. The summation did not weaken petitioner's case. There is no basis for petitioner's claim that trial counsel muddled through the summation and confused the defense's theory of the crime. Trial counsel elected to highlight certain points during the summation. The choice was a matter of sound strategy,
It is not enough that petitioner is not completely satisfied with the summation. Trial counsel's summation did not "so undermine the proper functioning of the adversarial process [such] mat the trial cannot be relied on as having produced a just result," Strickiand, 466 U.S. at 686. The claim is meritless,
C.
Petitioner claims that trial counsel's failure to adequately review his presentence report resulted in an overly harsh sentence. Petitioner relies on the applicable Federal Rules of Criminal Procedure. Rule 32 of the Federal Rules has no bearing on petitioner's sentencing,
Petitioner offers no evidence indicating that trial counsel failed to read the presentence report. Trial counsel states that he read the presentence report prior to petitioner's sentencing. In order to prevail on this claim, petitioner must prove that trial counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms." Id. at 688, Petitioner submits no proof that trial counsel failed to read and consider the presentence report.
Petitioner also fails to show that absent trial counsel's alleged failure, the "result of the proceeding would have been different. "Id. at 694, He claims that the presentence report stated that "all those involved [in the crime] seemed to have been a part of a drug distribution ring or into illegal activities . . ." Petitioner argues that his trial counsel should have argued that petitioner was not part of any drug distribution ring. The statement, however, contained the conjunction "or." Petitioner cannot argue that forcible collection of a debt, attempted murder and murder are not "illegal activities," Moreover, he does not establish that had the presentence report contained other alleged missing statements, his sentence would Have been more lenient, The trial court found tins claim to be without merit.
This court does not find that the trial court unreasonably applied or ruled contrary to established Supreme Court precedent. Habeas relief is not warranted under these circumstances. The claim is without merit.
D.
Petitioner's final claim is that trial counsel had a conflict; of interest. He claims that trial counsel should have recused himself so that defendant could call him as a witness at trial. The trial transcript indicates that trial counsel received a telephone call prior to trial from a person who identified himself as the attempted murder victim. The man identifying himself as the victim told trial counsel over the telephone that petitioner was not the man who shot him. (Tr. 2.) The defense attempted to investigate the veracity of the statement. When questioned at a later dale, the victim would not repeat the statement unless he was given one thousand dollars. When informed of the statement, defendant told trial counsel that he intended to call him as a witness, He attempted to secure another attorney. Defendant could not raise the funds to retain another attorney. Petitioner did not offer any additional objections to his trial counsel. The case proceeded to trial.
Petitioner argues that the Appellate Division unreasonably failed to extend the holding of Cuyler v. Sullivan to conflicts of interest not involving multiple representation. 446 U.S. 335 (1980), In Cuyler, the Supreme Court held that, while the mere possibility of conflict of interest was insufficient to impugn a criminal conviction, prejudice would be presumed if a petitioner could show that an "actual conflict of interest" adversely affected his attorney's performance.
Thus, for cases in which there was an "actual conflict of interest," Cuyler set a lower threshold for reversal of criminal convictions mat did Strickland. The alleged conflict in Cuyler, however, arose out of the multiple representation of the petitioner and his two co-defendants by the same attorneys.
Petitioner cites Second Circuit Court of Appeals cases in which that court has held that the Cuyler holding extends to non-multiple representation cases. E.g., United States v. White, 174 F.3d 290 (2d Cir. 1999) (attorney feared malpractice suit); Winkler v. Keane, 7 F.3d 304 (2d Cir. 1993) (conflict of interest related to fee arrangement), Other circuits, however, have concluded that the standard enunciated in Cuyler was limited to conflicts of interest based on multiple representation. The Fifth Circuit concluded that "Strickland offers a superior framework for addressing attorney conflicts outside the multiple or serial client context." Beets v. Colitis, 65 F.3d 1258 (5th Cir. 1995),
The standard of habeas review is that the state court must have unreasonably applied Supreme Court precedent. Here, the Circuits are in disagreement, and the Supreme Court explicitly failed to rule on whether Cuyler extends to all alleged conflicts of interest between lawyers and clients. The Court expressed its concern regarding the expansion of Cuyler in the Circuits: "It must be said, however, that die language of [ Cuyler] itself does not clearly establish, or indeed even support, such expansive application. . . . Both [ Cuyler] itself, and [ Hollyway v. Arkansas, 435 U.S. 475 (1978)] stressed the high probability of prejudice arising from multiple concurrent representation, and the difficulty of proving that prejudice." Mickens v. Taylor, 535 U.S. 162, 175 (2002) (citations omitted).
The result may have been different if this case had been on direct appeal to the Second Circuit from federal district court. This, however, is a petition for writ of habeas corpus, Under the standard of review, the claim that the Appellate Division's failure to extend Cuyler was an unreasonable interpretation of Supreme Court precedent is untenable.
The record is not clear as to why the court did not inquire into circumstances surrounding the phone conversation. The court did grant petitioner the opportunity to retain new trial counsel, and he failed to do so. The trial court may have been unpersuaded that the caller's identity was that of the victim. That court was far more familiar with the nuances and credibility of this incident. The state courts addressed this issue twice: in pre-trial hearings and on direct appeal. Both trial and appellate courts saw no reason to discharge counsel based on a suspicious telephone call. The state courts' holdings are reasonable and command deference. Although this court cannot determine the reasons for trial counsel's continued representation of petitioner, his failure to recuse himself and the trial court's failure to discharge him were harmless, See, e.g., Norde v. Keane, 294 F.3d 401, 412 (2d Cir. 2002) (holding that when representation is "vigorous" and "capable," the "failure of the trial judge to inquiry into" a request for new counsel is "harmless"),
Trial counsel was not unreasonable in failing to recuse himself. The court offered petitioner ample opportunity to secure new counsel. Trial counsel was willing to step aside. Petitioner's inability to offer a replacement compelled him to go forward with his representation. Petitioner did not object. The record demonstrates that trial counsel mounted a vigorous defense. It is doubtful that the trial counsel's description of the telephone conversation was admissible evidence under New York state law.
In any event, this court does not have to reach that issue. Evidence against petitioner was overwhelming, including two eyewitnesses for the People. Trial counsel presented a formidable defense given the evidence aligned against his client.
The Appellate Division was not unreasonable or contrary in its application of Strickland v. Washington, Habeas relief is not warranted on this ground,
VII. Certificate of Appealability
A certificate of appeal ability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003), The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No. 02-2320, 2003 US. App. LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mala, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
VII. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.