Summary
finding that petitioner was reasonably diligent under Rule 9 in filing state collateral proceedings and federal habeas petition several years after conclusion of direct appeal, given that, inter alia, "[a]fter the conclusion of her direct appeal in 1990, the petitioner had no legal assistance and was acting pro se for a number of years"
Summary of this case from Quinones v. MillerOpinion
No. 99 Civ. 4874 (JGK).
January 9, 2001.
OPINION AND ORDER
Petitioner Juanita Cotto seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. It is undisputed that on the evening of February 15, 1987, the petitioner, known as "Jennie" Cotto, stabbed her 79-year old grandmother, Emilia Oyola, numerous times. The petitioner ransacked the apartment and fled. Her grandmother made her way to a neighbor's apartment where she said "Jennie did it." Emilia Oyola subsequently died from the wounds the petitioner inflicted.
At her trial in New York State Supreme Court, New York County, the petitioner raised the defense of extreme emotional disturbance, but that defense was supported only by testimony from the petitioner and testimony that defense counsel was able to elicit on the cross-examination of the petitioner's mother. The petitioner was convicted of murder in the second degree and was sentenced to an indeterminate prison term of sixteen years to life, which she is currently serving.
Years after her conviction, assisted by new counsel, the petitioner now argues that she had been the victim of extreme abuse in her grandmother's home and that this abuse would have supported her defense of extreme emotional disturbance. More specifically, the petitioner argues that she was denied the effective of assistance of counsel because her trial attorney: (1) failed to consult with, and call as a witness, a psychiatrist who had interviewed the petitioner in support of the petitioner's defense of extreme emotional disturbance; (2) did not otherwise adequately investigate and develop the facts underlying the extreme emotional disturbance defense at trial; and (3) committed other errors, such as failing to request that the jury be instructed on the defense of intoxication.
The petitioner also alleged in her habeas petition that her trial counsel was ineffective for failing to communicate a plea offer to the petitioner. The respondent denied that any plea offer was made to the petitioner's trial counsel. The trial court rejected this claim on the petitioner's motion pursuant to C.P.L. § 440.10 to vacate the judgment of conviction, finding that: "[T]here is no basis for finding that counsel failed to communicate a plea offer." People v. Cotto, Indict. No. 1258-87, at 5 (N.Y.Sup.Ct. August 7, 1997). The Appellate Division affirmed the order denying the C.P.L. § 440.10 motion. People v. Cotto, 687 N.Y.S.2d 85 (App.Div. 1999). On this petition, the two assistant district attorneys who appeared in connection with the petitioner's case affirmed that there had been no plea offer other than the opportunity to plead to the Indictment. (Affirmation of Patricia Nunez, sworn to July 10, 2000, ¶¶ 2-4; Affirmation of Thomas Schiels, sworn to July 11, 2000, ¶¶ 2-3.) At oral argument, the petitioner's counsel conceded that the petitioner had not established by a preponderance of the evidence that a plea offer was made. (Transcript of Oral Argument dated September 7, 2000 ("Arg.") at 21-23.) It cannot be said that the decision of the state trial court was based on "an unreasonable interpretation of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254(d)(1), and no evidence was presented in this Court that undermines the state court's conclusion in any way. Therefore, any claim based on an alleged failure to communicate a plea offer is denied.
For the reasons that follow, the petition for habeas corpus is denied.
I.
The records submitted in connection with the present application, including the record on appeal submitted in connection with the petitioner's collateral challenge to her conviction, discloses the following facts. Until December, 1986, the petitioner, who was also known as "Jennie," her young daughter, Emily, her mother, Mercedes Maldonado, and her uncle, Jose Maldonado, lived with her maternal grandmother, Emilia Oyola ("Oyola"), in Oyola's third-floor apartment at 434 East 105th Street in Manhattan. (Record on Appeal ("R.") at 325-332, 346-350, 366-369.) In December 1986, the petitioner, Emily and Mercedes Maldonado moved to an apartment at 319 East 102nd Street. (R. at 326-327.)
On the evening of February 15, 1987, the petitioner went to Oyola's apartment and, after a period of time in which they drank rum together, the petitioner stabbed Oyola multiple times with a knife in the victim's neck, face, head, and back. CR. at 216-218, 289, 313, 319, 481-486, 518-519.) The petitioner then threw the knife in the kitchen sink, ransacked the bedrooms, and left Oyola bleeding on the floor. CR. at 301-302, 523-525.) At about 8:00 p.m. that evening, Ramon Carrion ("Carrion") was in his grandmother's apartment on the fourth floor of Oyola's apartment building when he heard a knock on the door. CR. at 401.) When Carrion opened the door, he saw Oyola covered with blood. CR. at 401-402.) Oyola said, "I'm dying, I'm dying, please help me." CR. at 402.) Carrion carried Oyola inside and placed her in a chair. CR. at 402.) When Carrion asked Oyola what had happened, Oyola responded twice that "My granddaughter, Jennie, did it . . ." CR. at 403.) Carrion then telephoned for the police and an ambulance. (R. at 403.)
At about 8:30 p.m., Officer Edward Lutz ("Officer Lutz") arrived at the scene and saw Oyola covered with blood. CR. at 298-300.) After calling an ambulance, Officer Lutz went to Oyola's apartment. (R. at 300.) Inside the apartment, he observed a puddle of blood in the kitchen and a larger puddle of blood in the living room. CR. at 301.) Officer Lutz observed that the back bedrooms were in disarray and that the dresser drawers had been pulled out. (R. at 301.) After crime scene officers arrived, Officer Lutz discovered a bloodied kitchen knife with an eight-inch blade in the kitchen sink. (R at 302-303.)
When paramedics arrived, Oyola was in critical condition. (R. at 311-313.) The paramedics brought Oyola to Metropolitan Hospital, where she died several hours later. (R. at 314, 323-324.)
Sometime after 11:00 p.m. on February 15, 1987, Detective Angelo Cioffe ("Detective Cioffe") interviewed the petitioner at the police precinct. (R. at 406.) At about 8:20 a.m. on February 16, 1987, Detective Cioffe drafted a statement which the petitioner read and signed. (R. at 407, 410-414, 426-427.) In that statement, the petitioner admitted visiting her grandmother several times on February 15, 1987. However, the petitioner stated that she left her grandmother's apartment at about 6:30 p.m. that evening and did not mention any involvement in the stabbing. (R. at 410-414.) That same afternoon, the petitioner gave a videotaped statement to an assistant district attorney in which she denied any involvement in Oyola's murder. (Transcript of Videotaped Statement, dated February 16, 1987, ("February Videotape Tr."), at 80-82.) Shortly thereafter, the petitioner was arrested. (R. at 415.)
On March 31, 1987, accompanied by trial counsel, the petitioner gave a second videotaped statement to the same assistant district attorney during which she stated that her former boyfriend, Miguel DeJesus ("DeJesus"), had come to Oyola's apartment looking for money and, in the petitioner's presence, grabbed Oyola and stabbed her in the neck. (Transcript of Videotaped Statement, dated March 31, 1987, ("March Videotape Tr."), at 4-5, 31-36.) The petitioner also stated that DeJesus had threatened to kill her mother and her daughter if the petitioner told of his involvement in the crime. (March Videotape Tr. at 5, 32.) DeJesus, however, had been arrested for drug possession on February 13, 1987, two days before Oyola's death, (R. at 441-444) and was not released from custody until February 16, 1987, the day after the murder. (R. at 450-452.) After learning that DeJesus had been in jail at the time of Oyola's death, the petitioner decided to admit her involvement in Oyola's murder. (R. at 534-535.)
At trial, the petitioner's trial counsel told the jury in his opening statement that he would show, through the testimony of his client and others, that the petitioner acted under extreme emotional disturbance. (R. at 289-291.) On cross-examination of the petitioner's mother, Mercedes Maldonado, the petitioner's trial counsel elicited testimony that Oyola drank everyday; that she would start arguing with Mercedes Maldonado and Maldonado's daughters when she was drunk; and that Oyola would curse at them. (R. at 347-351.) Mercedes Maldonado also testified on cross-examination that Oyola would misplace her bag when drunk and would accuse the petitioner and her daughter of stealing money, but would later find it and apologize. (R. at 349-350.)
The petitioner testified that when Oyola drank she would start cursing and fighting with the petitioner and make accusations. (R. at 496-497.) During the period of time that the petitioner, her daughter, and Mercedes Maldonado lived with Oyola, Oyola would on occasion throw them out of the apartment, forcing them to sleep elsewhere. (R. at 496-497.) The petitioner also testified that Oyola often accused her and her daughter of stealing, although they had not stolen anything and Oyola would later find the item and apologize. (R. at 497.) The petitioner stated that she would ignore Oyola and "was the only in one the family that could even deal with it." (R. at 498.)
With respect to February 15, 1987, the petitioner testified that she had gone to her grandmother's apartment three or four times that day. (R. at 482.) On the last occasion, the petitioner and Oyola were drinking rum. (R. at 483.) Although the petitioner was slightly drunk, Oyola was drunk. (R. at 483, 502.) The petitioner testified that Oyola kept cursing at her and arguing with her. (R. at 481, 485, 518.) Oyola also cursed the petitioner's daughter, Emily. (R. at 485.) The petitioner testified that Oyola "was telling us to go to Hell for me, my daughter, and she sa[id] she hoped they take my daughter and split her in two, . . . that [Emily's a thief." (R. at 482.) At first the petitioner ignored Oyola, but the petitioner testified that at some point "I just went off. Exactly what she told me that I went off, I don't remember." (R. at 485.) The petitioner testified that, without any awareness of throwing her grandmother to the floor or stabbing her, the petitioner found herself on top of Oyola holding a knife in her hand. (R. at 481-482, 484-486, 502-503, 518-519.)
The petitioner testified that when she saw her grandmother bleeding and realized what had happened she became upset and scared. (R. at 486-487, 523.) She threw the knife in the kitchen sink and ransacked the bedroom to make it look like a robbery had occurred. (R. at 487-488, 523-525.) The petitioner testified that she did not take anything from the apartment and that she then fled home. (R. 487-488.) The petitioner testified that she denied stabbing the petitioner to the police and the assistant district attorney because she was scared. (R. at 491-492.) She implicated DeJesus in the killing on the advice of other inmates at Riker's Island. (R. at 493-494.)
Although the assistant district attorney made reference to a psychiatrist, Dr. Naomi Goldstein ("Dr. Goldstein"), who had interviewed the petitioner, trial counsel did not call any other defense witnesses. (R. at 501, 541-543.) Before summations, trial counsel successfully moved to dismiss a felony murder charge on the grounds that there was insufficient evidence to submit to the jury that a robbery had occurred. (R. at 545-546.)
On November 17, 1987, the jury found the petitioner guilty of murder in the second degree. (R. at 649-652.) On December 11, 1987 the petitioner was sentenced to an indeterminate prison term of sixteen years to life. (R. at 662.) The Appellate Division, First Department, affirmed the petitioner's conviction on March 22, 1990. See People v. Cotto, 552 N.Y.S.2d 639 (App.Div. 1990). The New York Court of Appeals denied the petitioner's leave to appeal on June 27, 1990. See People v. Cotto, 559 N.E.2d 685 (N.Y. 1990).
On April 18, 1997, the petitioner sought collateral relief in state court by filing a motion in the Supreme Court, New York County, to vacate her conviction pursuant to N.Y. C.P.L. § 440.10 on the grounds that she had been denied the effective representation of counsel at trial and that trial counsel failed to communicate a plea offer to her. On August 7, 1997, the trial judge, Justice Herbert Altman, of the New York State Supreme Court, New York County, denied the petitioner's motion without a hearing, finding that trial counsel had adequately represented the petitioner and that there was no basis to conclude that trial counsel failed to communicate a plea offer. See People v. Cotto, Indict. No. 1258-87 (N.Y.Sup.Ct. August 7, 1997); (see also R. at 11-21.). The Appellate Division, First Department, affirmed the denial of the motion on March 4, 1999, concluding that "[e]ach of trial counsel's alleged deficiencies in his conduct of defendant's extreme emotional disturbance defense had a plausible strategic explanation, and, in any event, these deficiencies could not have deprived defendant of a fair trial." People v. Cotto, 687 N.Y.S.2d 85, 86 (App.Div. 1999) (citation omitted) The New York Court of Appeals denied the petitioner's application for leave to appeal on July 6, 1999. See People v. Cotto, 695 N.E.2d 1085 (N.Y. 1999)
The petitioner filed her petition for a writ of habeas corpus on July 7, 1999. This Court held an evidentiary hearing on July 13-14, 2000. At the hearing Dr. Goldstein, the petitioner, and her sister, Maria Cotto, testified. Dr. Goldstein testified concerning her interview of the petitioner, her written report that she sent to trial counsel, what she would have done had trial counsel contacted her about the written report, and what she would have testified to with respect to the defense of extreme emotional disturbance had she been called as a witness. (Transcripts of Evidentiary Hearing, dated July 13-14, 2000, ("Hr.") at 5-148.) The petitioner testified about trial counsel's representation of her, Oyola's past abusive behavior, the events surrounding Oyola's death, and the petitioner's subsequent arrest and trial. (Hr. at 158-266.) Maria Cotto testified about her relationship with the petitioner, her family circumstances, including instances of abuse on the part of Oyola, and that she had been willing to help the petitioner at trial had she been asked. (266-338.) The evidence adduced at the evidentiary hearing is recounted at greater length below in connection with the petitioner's specific claims of ineffective assistance of trial counsel.
II.
This case is governed by the habeas statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") because the petitioner filed her petition after AEDPA's effective date. See Lindh v. Murphy, 521 U.S. 320, 326-327 (1997). AEDPA, which became effective on April 24, 1996, imposed a one-year statute of limitations for the filing of a federal habeas corpus petition seeking relief from a state court conviction. See 28 U.S.C. § 2244(d)(1). In general, this one-year period runs from the date on which the state criminal judgment becomes final. See id. However, 28 U.S.C. § 2244 (d)(2), as amended by AEDPA, provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation. . . ." 28 U.S.C. § 2244(d)(2).
In Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998), the Court of Appeals for the Second Circuit held that petitions for habeas corpus pursuant to 28 U.S.C. § 2254 brought by petitioners whose convictions had become final prior to the effective date of AEDPA are timely under AEDPA if filed on or before April 24, 1997. See Ross, 150 F.3d at 103. In this case, the petitioner filed her N.Y. C.P.L. § 440.10 motion on April 18, 1997 and filed her habeas petition on July 7, 1999. The respondent initially raised the defense that the petition was untimely, arguing that the one-year grace period imposed by the Court of Appeals for the Second Circuit in Ross is not tolled under 28 U.S.C. § 2244(d)(2) by the pendency of a post-conviction state court collateral proceeding. However, in Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), aff'd on other grounds, No. 99-1238, 2000 WL 1663653 (U.S. Nov. 7, 2000), the Court of Appeals for the Second Circuit rejected a similar argument, holding that Section 2244(d)(2) applies to a petition challenging a pre-AEDPA conviction and that a properly filed application for state post-conviction relief can toll the one-year grace period established inRoss. See Bennett, 199 F.3d at 119; see also Duncan v. Griener, No. 97 Civ. 8754, 1999 WL 20890, at *3 (S.D.N.Y. Jan. 19, 1999)
In this case, the grace period under Ross ran from April 24, 1996 to April 18, 1997, when the petitioner's post-conviction motion was.properly filed in state court — a total of 359 days. It was then tolled from April 18, 1997 until June 6, 1999, the date the New York Court of Appeals denied the petitioner's application for leave to appeal. The petitioner promptly filed her habeas petition the next day, June 7, 1999. As a result, the petitioner's habeas petition was filed within the one-year provided for in Ross and is timely.
III.
The respondent has moved to dismiss this petition pursuant to Rule 9(a) of the Rules Governing Section 2254 Cases in the United States Courts. Rule 9(a) provides:
Delayed Petitions. A petition may be dismissed if it appears that the state of which the respondent is an officer has been prejudiced in its ability to respond to the petition by delay in its filing unless the petitioner shows that it is based on grounds of which he could not have had knowledge by the exercise of reasonable diligence before the circumstances prejudicial to the state occurred.
Rule 9(a) of the Rules Governing Section 2254 Cases. Rule 9(a) is not a statute of limitations, but is based on the equitable doctrine of laches. See Rules Governing Section 2254 Cases Rule 9(a) Advisory Committee Notes (1976) ("Advisory Committee Notes"); see also Norris v. Lefevre, No. 82 Civ. 0614, 1982 WL 3107, *3 (S.D.N.Y. Aug. 27, 1982). The fact that a petition is not time-barred by the statute of limitations imposed by AEDPA does not preclude dismissal of the petition pursuant to Rule 9(a). See Ross, 150 F.3d at 103. Rule 9(a) "is permissive rather than mandatory, allowing a district court to exercise discretion to entertain an application, even where the state has made the required showing of delay and prejudice." Rosa v. Senkowski, No. 97 Civ. 2468, 1997 WL 436484, at *11 (S.D.N Y Aug. 1, 1997) (citing Advisory Committee Notes), modified, 1997 WL 724559 (S.D.N.Y. Nov. 19, 1997), aff'd on other grounds, 148 F.3d 134 (2d Cir. 1998) (per curiam); Hughes v. Irvin, 967 F. Supp. 775, 779 (E.D.N.Y. 1997)
Rule 9(a) has been narrowly construed and a respondent seeking dismissal of a habeas petition under the rule faces a "heavy burden."Walters v. Scott, 21 F.3d 683, 686 (5th Cir. 1994); see also Rosa, 1997 WL 436484, at *11; Hughes, 967 F. Supp. at 779. A respondent must: (1) make a particularized showing of prejudice; (2) show that the prejudice resulted from the petitioner's delay in filing a petition; and (3) show that the petitioner has not acted with reasonable diligence. See Walters, 21 F.3d at 686-87; Hughes, 967 F. Supp. at 779; see also Rosa, 1997 WL 436484, at *11; Hodge v. Walker, No. 95 Civ. 2873, 1996 WL 363181, at *2 (S.D.N.Y. Jul. 1, 1996), adopted by, 1996 WL 591247 (S.D.N.Y. Oct. 11, 1996). For purposes of Rule 9(a), prejudice cannot be presumed solely from the petitioner's delay alone. See Rosa, 1997 WL 436484, at *11 (citing Moseley v. Scully, 908 F. Supp. 1120, 1130 (E.D.N.Y. 1995), aff'd, 104 F.3d 356 (2d Cir. 1996)
In fact, before passing Rule 9(a), Congress specifically deleted a provision from the draft version that would have created a rebuttable presumption of prejudice after a delay of five or more years, concluding that such a presumption would be inconsistent with the equitable purposes of habeas corpus relief. See Act of Sept. 28, 1976, Pub.L. No. 94-426, § 2(9), 90 Stat. 1334; also H.R. Rep. No. 94-1471 p. 5 (1976), U.S. Code Cong. Admin. News 1976, pp. 2478, 2481; Lonchar v. Thomas, 517 U.S. 314, 327 (1996).
The respondent alleges that the respondent has been prejudiced in defending against the petition by the petitioner's delay in filing because trial counsel is now deceased, Dr. Goldstein no longer has an intact file and has no current recollection of her evaluation of the petitioner, and other material evidence, such as trial counsel's records, are unavailable. Where a petitioner asserts an ineffective assistance of counsel claim, the testimony of the attorney alleged to have rendered ineffective assistance is relevant and the death of that attorney may result in prejudice. See, e.g., Hodge, 1996 WL 363181, at *3. The Advisory Committee's Notes on Rule 9(a) observe that:
The parties dispute the actual length of the petitioner's delay for purposes of Rule 9(a). The respondent argues that the petitioner delayed ten years after her conviction to raise her claims in the state collateral proceeding. (Resp.'s Supp. Mem. of Law at 3.) On the other hand, the petitioner argues that the delay was either seven or five years depending on whether the time should be measured up to the time that the petitioner brought a clemency petition or up to the time that the petitioner filed her section 440.10 motion. (Beldock Affirmation, dated June 26 2000 ("June Beldock Aff."), at ¶ 16.) In this case, it is clear that there was a delay of at least five years and the exact length of the delay is not dispositive.
The grounds most often troublesome to the courts are ineffective counsel [and four other enumerated grounds.] . . . When they are asserted after the passage of many years, both the attorney for the defendant and the state have difficulty in ascertaining what the facts are. It often develops that the defense attorney has little if no recollection as to what took place and that many of the participants in the trial are dead. . . As a consequence, there is obvious difficulty in investigating petitioner's allegations.
Advisory Committee Notes. "Prejudice to the state may not merely be presumed, however, from the absence of a transcript or of witnesses necessary to recount the details of [a] proceeding." Norris, 1982 WL 3107, at *4. The respondent "must actually be disadvantaged by the absence of such resources in responding to the particular allegations or theories asserted by (the] petitioner as grounds for habeas corpus."Id.; see also Rosa, 1997 WL 436484, at *11.
The respondent has not shown that the respondent was actually disadvantaged or that any such prejudice was caused by the petitioner's unreasonable delay. First, as reflected in the quality of the respondent's papers, the respondent has been able to respond effectively to the allegations and theories asserted by the petitioner. Although ineffective assistance claims often rest on events that occur outside of the trial, the respondent has complete copies of the trial record, the record on appeal of the petitioner's state court collateral claim, Dr. Goldstein's report, and other material relied on by the petitioner in asserting her claims. In addition, when trial counsel was contacted about the petitioner's case in 1993, three years after the end of the petitioner's direct appeal, trial counsel did not remember much about the case and had already thrown out all his files, (Beldock Affirmation, dated June 26 2000 ("June Beldock Aff."), at ¶ 7), and it is not clear that his testimony would have been helpful to the respondent if this petition had been filed prior to his death.
In some respects, the petitioner's delay in filing her petition prejudiced her, rather than the respondent. Testimony from her mother, now deceased, regarding instances of Oyola's abusive and violent conduct and her mother's recollection of interactions with trial counsel is unavailable to the petitioner. Testimony from trial counsel or evidence from his records is also unavailable and thus the petitioner's allegations about her interaction with her trial counsel are largely uncorroborated. Dr. Goldstein's memory has faded, her testimony is reconstructed from her notes, and her testimony is speculative and relies, in part, on information she has learned only in recent years, thereby affecting her credibility. Thus, the respondent has not satisfied its burden of demonstrating prejudice from the petitioner's delay in pursuing her collateral remedies sufficient to warrant the exercise of the Court's discretion to dismiss the petition.
In any event, it cannot be said that, under the circumstances, the petitioner has not been diligent with respect to her case. After the conclusion of her direct appeal in 1990, the petitioner had no legal assistance and was acting pro se for a number of years. She had no court papers other than the appeal brief submitted on her behalf by Legal Aid. (Hr. at 172.) At some point, a law intern from the Steps to End Violence program attempted to assist the petitioner in getting her trial minutes, along with other court papers, but, he gave up after he was unsuccessful. (Hr. at 176.) In 1993, the petitioner again unsuccessfully attempted to obtain her trial minutes. (Hr. at 172, 176.) In 1993, the Albany Law School Domestic Violence Clinic ("Clinic") began to investigate her case and made diligent attempts to acquire information regarding trial counsel's representation of the petitioner. (June Beldock Aff. at ¶¶ 6-8, 11.) The Clinic filed an application to the Governor to commute the petitioner's sentence in 1995. (June Beldock Aff. at ¶ 11, Ex. B.) In addition, since becoming involved in this matter in April 1997, the petitioner's present counsel has diligently pursued her claims by initiating state collateral proceedings and filing this petition. (June Beldock Aff. at ¶ 6.) Therefore, the respondent's motion to dismiss the petition pursuant to Rule 9(a) is denied.
IV.
A federal court may only grant a petition for habeas corpus challenging a state court judgment on a claim adjudicated on the merits by the state court if the adjudication of the claim was (1) "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); see also Williams v. Taylor, 120 S.Ct. 1495, 1519-1522 (2000) (O'Connor, J., writing for the Court in Part II of her opinion).
A state court decision is "contrary to" clearly established law within the meaning of § 2254(d)(1) if: (1) "the state court applies a rule that contradicts the governing law set forth" in the relevant Supreme Court precedents, or (2) "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 [the Supreme Court] precedent." Williams, 120 S.Ct. at 1519-20. A state court decision involves an "unreasonable application of" clearly established federal law if the state court's application of Supreme Court precedent to the facts of the case is "objectively unreasonable." Id. at 1521. "[A]n unreasonable application of federal law is different from an incorrect application of federal law." Id. at 1522. Thus, "a federal habeas court may not issue the writ simply because the 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. Some increment of incorrectness beyond error is required, but "the increment need not be great. . . ." Francis v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). The increment need not be so great as to limit habeas relief to those state court decisions "so far off the mark as to suggest judicial incompetence." Id. (citation omitted); see also Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000)
V.
The petitioner argues that she was denied the effective of assistance of counsel because her trial attorney: (1) failed to consult with, and call as a witness, Dr. Goldstein, to support the petitioner's defense of extreme emotional disturbance; (2) did not adequately investigate and develop the facts underlying an extreme emotional disturbance defense at trial; and (3) committed other errors which constituted ineffective assistance.
Under New York law, "extreme emotional disturbance for which there was a reasonable explanation or excuse" is an affirmative defense to murder in the second degree, and if established, has the effect of reducing the maximum charge to first-degree manslaughter. See N.Y. Penal Law § 125.25(1)(a). The "reasonableness" of the explanation or excuse "is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be."Id.
To succeed on a petition for habeas corpus based upon ineffective assistance of counsel, a petitioner must show both that (1) her counsel's performance was deficient in that it was objectively unreasonable under professional standards prevailing at the time, and (2) that counsel's deficient performance was prejudicial to the petitioner's case. See, e.g., Strickland v. Washington, 466 U.S. 668, 687 (1984); Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995); Nieves v. State of New York, No. 97 Civ. 2121, 1998 WL 599716, at *3 (S.D.N.Y. Sept. 10, 1998) However, "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland, 466 U.S. at 697.
A petitioner cannot meet the first prong of the Strickland test merely by showing that her counsel employed a poor strategy or made a wrong decision. Nieves, 1998 WL 599716, at *3. Instead, the petitioner must establish that her counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed . . . by the Sixth Amendment."Strickland, 466 U.S. at 687. Indeed, there is a "strong presumption" that counsel's conduct fell within the broad spectrum of reasonable professional assistance, and a defendant bears the burden of proving "that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy." Kimmelman v. Morrison, 477 U.S. 365, 381 (1985) (citing Strickland, 466 U.S. at 688-89)
To satisfy the second prong of Strickland, the petitioner must show that "[t]here is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. In this case, the petitioner's ineffective assistance of counsel claims fail to meet the first prong of the Strickland test.
A.
The petitioner first claims that it was ineffective assistance of counsel not to call at trial Dr. Goldstein, a distinguished and well respected expert psychiatrist, to pursue with her the defense of extreme emotional distress. Dr. Goldstein, who had been contacted by trial counsel to examine the petitioner as to her competency and general mental state, met with the petitioner twice before trial for a total of about two and one-half hours. (Pet.'s Ex. 5 at 1.) She also reviewed various case records, including the videotaped statements made by the petitioner, and consulted by telephone with a social worker to whom the family had been referred. (Pet.'s Ex. 5 at 1.)
After completing her evaluation, Dr. Goldstein prepared a written report dated September 2, 1987, which she sent to trial counsel. (Pet.'s Ex. 5.) The report reviewed the relevant information about the petitioner's past that had been disclosed to her. (Pet.'s Ex. 5 at 1-4.) The report provides descriptions of Oyola, "which [had] emerged from several sources" indicating that she was "a difficult woman . . . who could be physically abusive" and "drank heavily." (Pet.'s Ex. 5 at 3.) The petitioner and her daughter, Emily, were apparently the principal objects of Oyola's hostility. (Pet.'s Ex. 5 at 3.) The report also indicated that the petitioner occasionally took drugs, principally crack. (Pet.'s Ex. 5 at 3.)
In describing the events of February 15, 1987, the petitioner told Dr. Goldstein that she was upset because her grandmother was "`nagging and nagging." (Pet.'s Ex. 5 at 4.) The petitioner stated that she loved Oyola very much, although Oyola sometimes did cruel things. (Pet.'s Ex. 5 at 4.) The petitioner told Dr. Goldstein that she did not recall exactly what happened and that she just "`went off.'" (Pet.'s Ex. 5 at 4.) With respect to the petitioner's willingness to provide information, the report states:
It is noteworthy that Ms. Cotto had been enormously reluctant to acknowledge or discuss the charges against her and had not discussed with any consistency what may have transpired. When I last saw her she stated that she was prepared to talk about it to the extent that she could remember, because it had, "been eating at my mind." She was ashamed to tell anyone what had happened, even counselors at Rikers Island.
(Pet.'s Ex. 5 at 4.)
Dr. Goldstein diagnosed the petitioner as having a personality disorder and an adjustment disorder with depression. (Pet.'s Ex. 5 at 5.) Dr. Goldstein opined that the petitioner was competent to stand trial and found no evidence to support an insanity defense. (Pet.'s Ex. 5 at 5.) She noted that lacking more information it was difficult to visualize exactly what transpired between Oyola and the petitioner leading up to Oyola's death. (Pet.'s Ex. 5 at 5.) She concluded: "I think that the possibility of extreme emotional disturbance would have to be considered along with the likelihood that the incident was the culmination of long standing family tensions. The validity of the arguments and the source of the original provocation are difficult to assess." (Pet.'s Ex. 5 at 6.) Dr. Goldstein was not called by trial counsel to testify at the petitioner's trial.
Dr. Goldstein submitted an affidavit in support of the petitioner's N.Y. C.P.L. § 440.10 motion and this petition. (Affidavit of Naomi Goldstein, sworn to April 17, 1997, Pet.'s Ex. 6.) According to Dr. Goldstein, her records indicated that she never heard from trial counsel after submitting her written report and that it was unusual that she was not contacted. (Pet.'s Ex. 6 at ¶¶ 18-19.) Dr. Goldstein also indicated that she would have been willing to testify for the defense as to her findings in evaluating the petitioner. (Pet.'s Ex. 6 at 20.)
At the evidentiary hearing, Dr. Goldstein testified that trial counsel asked her to examine the petitioner's mental competency and whether a mental defense was available. (Hr. at 17.) According to Dr. Goldstein, trial counsel was "very distraught" and was "trying to figure out what did happen . . . and was concerned about the lying." (Hr. at 22, 78, 80-81.) There was no limitation place on how many times or how long Dr. Goldstein could meet with the petitioner. (Hr. at 68-70.) Dr. Goldstein had no independent recollection of interviewing the petitioner and testified based on her notes, her report, and her experience. (Hr. at 63-64.) Dr. Goldstein testified that she might have spoken to trial counsel prior to sending her report and that this would be her practice, although she had no record of such a conversation in her notes. (Hr. at 21, 92.) She also testified that she had no notes indicating that trial counsel had contacted her after receiving her report, and she therefore concluded that trial counsel did not call her after receiving the report. (Hr. at 17-18, 20.) Dr. Goldstein testified that had trial counsel called her after receiving the report, she would have "been adamant" that she needed to see the petitioner again and she would have asked to see members of the family. (Hr. at 24.) Dr. Goldstein, however, did not mention the need for further meetings with the petitioner or family interviews in her report and did not follow up with trial counsel after submitting the report. (Hr. at 84, 104, 129)
Dr. Goldstein testified that the petitioner "was extremely emotional [sic] disturbed" and that Dr. Goldstein would have testified in support of an extreme emotional disturbance defense. (Hr. at 26-27.) Dr. Goldstein opined that the petitioner must have perceived herself to be threatened in an intolerable way and that she was overcome by rage causing her to lose control. (Hr. at 40, 43, 57, 93.) Dr. Goldstein admitted that this opinion of the petitioner's mental state, however, is not contained in her notes or her report. (Hr. at 134-136.) Although Dr. Goldstein was aware that the petitioner had made two prior false statements to the police and an assistant district attorney and she was also aware of trial counsel's concern about the petitioner's credibility, Dr. Goldstein testified that she credited the information provided to her at the time by the petitioner. (Hr. at 41, 82, 103, 112-113.)
In connection with her affidavit and testimony, Dr. Goldstein reviewed affidavits, (Pet.'s Exs. 9 10), submitted by the petitioner and Maria Cotto. (Hr. at 49.) These affidavits detail a history of abuse suffered by the petitioner and other family members at the hands of Oyola and others. (Pet. "s Ex. 9 at ¶¶ 4-31, 34-35; Pet.'s Ex. 10 at ¶¶ 7-17, 23-24.) The petitioner's affidavit, for example, detailed a history of physical and psychological abuse by her mother and grandmother, and also explained how she had been sexually abused as a child by men who visited her grandmother. (Pet.'s Ex. 9 at ¶¶ 4-31.)
When Dr. Goldstein interviewed the petitioner, Dr. Goldstein did not learn about the instances of child abuse contained in the affidavits and did not ask the petitioner about child abuse, but she testified that had she continued to obtain information she would have expanded her inquiry to include the petitioner's experiences as a child. (Hr. at 55-56.) Had Dr. Goldstein known of the expanded history of abuse contained in the affidavits, "it would have bolstered [her] conviction that [the petitioner] was psychiatrically, psychologically very damaged." (Hr. at 58.) Dr. Goldstein noted that some of the petitioner's "secrets remained secret for many years until she could cope with them and talk about them" and that the history of abuse related in the affidavits could have taken months to develop. (Hr. at 53-54, 118.) Dr. Goldstein observed that the petitioner "was reluctant to say even more nasty things about her grandma." (Hr. at 132.)
Dr. Goldstein admitted that trial counsel may not have called her as a witness because he did not think her report was clear enough or was disappointed with the report. (Hr. at 129.) She acknowledged that had she been called to testify, she would have been cross-examined about the petitioner's credibility and drug use. (Hr. at 129-131.)
The petitioner testified at the evidentiary hearing that she was comfortable being questioned by Dr. Goldstein and that she would most likely have continued to give Dr. Goldstein information if she had seen the doctor again. (Hr. at 170-171, 230.) The petitioner, however, only gave Dr. Goldstein "a taste of the violence that went on in [her] family" and testified that she "probably wasn't ready at the time to give [Dr. Goldstein] more" and that she needed years of therapy "to be able to speak up now with everything [she] went through as a child." (Hr. at 217, 250.) The petitioner did not tell Dr. Goldstein about her sexual abuse because she was not consciously aware of it at the time and did not speak about that until years later, after counseling. (Hr. at 231, 245, 257-258.) The petitioner testified that trial counsel had told the petitioner that Dr. Goldstein would testify on her behalf, however, when questioned why Dr. Goldstein did not testify at the end of the trial, trial counsel allegedly told the petitioner that either Dr. Goldstein was unavailable or that "we don't need her." (Hr. at 170, 210.)
The petitioner asserts that the failure to follow up with Dr. Goldstein concerning the evaluation in her report and the failure to provide the jury with the testimony that would have come from Dr. Goldstein's expert psychiatric testimony was not a reasonable strategic decision by trial counsel and was an objectively unreasonable breach of permissible standards for trial counsel that prejudiced the defense.
Trial counsel's decision "whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation." United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997); See also United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) (citing Schmidt, 105 F.3d at 90); United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987) ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.")
In the present case, the petitioner has not shown that the failure to call Dr. Goldstein as a witness fell below an objective standard of reasonableness. Expert psychiatric testimony is not required to establish the defense of extreme emotional disturbance. See e.g., People v. Move, 489 N.E.2d 736, 738 (N.Y. 1985); see also DeLuca v. Lord, 77 F.3d 578, 586 (2d Cir. 1996). The petitioner has not demonstrated that the testimony that Dr. Goldstein would have given in 1987 would have materially benefited the petitioner. As the state trial court determined in reviewing the petitioner's motion to vacate her conviction, Dr. Goldstein's conclusion that "the possibility of extreme emotional disturbance would have to be considered along with the likelihood that the incident was the culmination of long standing family tensions," (Pet.'s Ex. 5 at 6) (emphasis added), was "equivocal and of questionable persuasiveness." (R. at 16.) The report did not indicate the strong positions stated by Dr. Goldstein at the evidentiary hearing that the petitioner was extremely emotionally disturbed and that Dr. Goldstein would testify in support of the defense; the report made no mention of the need for further meetings with the petitioner or family interviews; and it did not indicate that Dr. Goldstein strongly believed trial counsel should follow up with her further about developing an extreme emotional disturbance defense. Indeed, had Dr. Goldstein been called to testify as a trial witness, she would surely have been cross-examined with the conclusion in her report that: "The validity of the arguments and the source of the original provocation are difficult to assess." (Pet.'s Ex. 5 at 6.)
The petitioner has not established that trial counsel did not follow up with Dr. Goldstein. Dr. Goldstein had no independent recollection of interviewing the petitioner and she relied on her notes, her report, and her experience in preparing her affidavits and testifying at the evidentiary hearing. Although Dr. Goldstein's records indicated that she never heard from trial counsel again after submitting her report, leading her to conclude that trial counsel did not contact her again, Dr. Goldstein assumed that she spoke with trial counsel before sending out her report because it was her custom to do so, despite the fact that her records do not indicate that any such conversation took place. If Dr. Goldstein did not make any written record of a pre-report conversation that she assumes took place, it cannot be inferred that a post-report conversation did not take place from the absence of a written record.
Dr. Goldstein recognized that trial counsel may not have called her as a witness because there were reasons that he might have concluded that the report was not clear enough or that he might have been disappointed with the report. For example, would surely have been cross-examined with the conclusion in her report that: "The validity of the arguments and the source of the original provocation are difficult to assess." (Pet.'s Ex. 5 at 6.)
The petitioner has not established that trial counsel did not follow up with Dr. Goldstein. Dr. Goldstein had no independent recollection of interviewing the petitioner and she relied on her notes, her report, and her experience in preparing her affidavits and testifying at the evidentiary hearing. Although Dr. Goldstein's records indicated that she never heard from trial counsel again after submitting her report, leading her to conclude that trial counsel did not contact her again, Dr. Goldstein assumed that she spoke with trial counsel before sending out her report because it was her custom to do so, despite the fact that her records do not indicate that any such conversation took place. If Dr. Goldstein did not make any written record of a pre-report conversation that she assumes took place, it cannot be inferred that a post-report conversation did not take place from the absence of a written record.
Dr. Goldstein recognized that trial counsel may not have called her as a witness because there were reasons that he might have concluded that the report was not clear enough or that he might have been disappointed with the report. For example, trial counsel had legitimate concerns about the petitioner's credibility and calling Dr. Goldstein would have permitted cross-examination on that issue, along with the issue of the petitioner's drug use. The report itself indicates that Dr. Goldstein's evaluation was hampered by the petitioner's lack of memory about details of the killing. After the petitioner saw Dr. Goldstein, trial counsel took the extraordinary step of having the petitioner seen by a hypnotist to assist in recovering the petitioner's memory without success. (Hr. at 178-179, 232-233.) Trial counsel may reasonably have concluded that given the equivocal nature of the evaluation and the failed attempt to recover the petitioner's memory of events even after hypnosis, Dr. Goldstein would not have been able to assist the defense because such testimony would further highlight the inconsistencies in the petitioner's account of events.
In addition, as the state trial court noted, it is not clear that had Dr. Goldstein continued to speak with the petitioner, the petitioner would have revealed more details about the history of abuse she suffered. (R. at 16.) Dr. Goldstein testified that the history of abuse that the petitioner suffered could have taken months to develop and that it took the petitioner years to be able to cope and discuss some of her "secrets." (Hr. at 53-54, 118.) The petitioner herself acknowledged that she probably was not ready to reveal more information about instances of abuse and was not yet aware of the sexual abuse. Dr. Goldstein could have spent additional time with the petitioner to obtain more information, but chose not to. The report itself discussed the petitioner's reluctance to discuss what had happened. Thus, trial counsel could reasonably have concluded that further evaluation would not reveal additional pertinent information.
Dr. Goldstein's current view of the facts and her present evaluation is reconstructed and influenced by hindsight and the additional knowledge she has obtained from the recent affidavits detailing the petitioner's history of abuse. This information was not before Dr. Goldstein at the time and she never conveyed that information to trial counsel, and her contemporaneous analysis was far more equivocal than her affidavit and current testimony. Dr. Goldstein's contemporaneous report is a more accurate reflection of what her testimony would have been at the time.
This is not a case like Maddox v. Lord, 818 F.2d 1058 (2d Cir. 1987), on which the petitioner principally relies. In that case, the Court of Appeals found that it was error for the district court not to hold an evidentiary hearing to determine whether the petitioner's trial counsel provided ineffective assistance by failing to interview a potential expert psychiatric witness in support of a defense of extreme emotional disturbance. See Maddox, 818 F.2d at 1061-62. The Court of Appeals noted that although defense counsel raised the defense, he failed to investigate and pursue it thoroughly. Id. at 1061. In this case, unlikeMaddox, this Court held an evidentiary hearing to determine what the petitioner's trial counsel did to support the defense and whether the decisions he made with respect to the potential expert testimony were reasonable. Moreover, in this case, unlike Maddox, defense counsel did pursue an expert psychiatrist and it was only after receiving an equivocal report that he determined not to call the witness and to seek other evidence including an effort to obtain the petitioner's recollection of the critical events through hypnosis.
It is also clear that this is not a case like DeLuca v. Lord, 77 F.3d 578 (2d Cir. 1996), in which trial counsel provided ineffective assistance of counsel by abandoning a defense of extreme emotional disturbance based on the erroneous belief that psychiatric testimony was required to support the defense. In this case, the defense was pursued, argued in opening and summation, and evidence in support of the defense was adduced through the petitioner and her mother.
The decision by trial counsel not to call Dr. Goldstein was a close one. But based on the totality of the circumstances, as they existed at the time, including the equivocal nature of Dr. Goldstein's report and the possibility of some adverse testimony and the availability of the testimony from the petitioner and her mother, the petitioner has not overcome the strong presumption that counsel's decision not to call Dr. Goldstein to testify was a strategic decision that fell within the broad spectrum of reasonable professional assistance. As the Supreme Court has instructed: "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."Strickland, 466 U.S. at 689. Because the petitioner's trial counsel's decision not to call Dr. Goldstein as a witness was not objectively unreasonable so as to deny the petitioner the effective assistance of counsel, the conclusions reached by the state trial court, and the Appellate Division in affirming the state trial court's decision, were not contrary to Supreme Court precedent, nor did they constitute an objectively unreasonable application of Supreme Court precedent. Rather, the conclusions of the state courts were wholly reasonable applications of Supreme Court precedent.
B.
The petitioner's second claim asserts that, in addition to failing to call Dr. Goldstein, the petitioner's trial counsel was ineffective because he did not investigate adequately and develop the facts sufficiently to present an effective extreme emotional disturbance defense at trial.
At the evidentiary hearing, the petitioner testified that trial counsel never asked her questions about her upbringing, her family circumstances, the abuse she received from her grandmother, or what happened when she stabbed her grandmother, although she did tell his investigator about the events surrounding Oyola's death. (Hr. at 162-163, 167-168, 202.) She also testified that trial counsel did not prepare her to testify and that she did not know she was testifying until the day she testified. (Hr. at 168, 210.)
However, the petitioner's testimony about her trial counsel's lack of preparation was not credible and was inconsistent with the record. The record reflects diligent efforts by the petitioner's trial counsel to develop a defense for trial.
After the petitioner implicated DeJesus to trial counsel or his investigator, trial counsel arranged for the petitioner to take a polygraph test, where she stated that DeJesus was the murderer. (Hr. at 203-204, 206.) The petitioner successfully deceived the polygraph examiner into concluding that the petitioner was not telling falsehoods. (Hr. at 240-241.) Trial counsel then arranged for the petitioner to make a second statement to the assistant district attorney where she again lied about DeJesus. (Hr. at 206.) After the petitioner saw Dr. Goldstein, trial counsel had the petitioner see a hypnotist while he was present. (Hr. at 178-179, 232-233.) The petitioner was also interviewed at least twice by trial counsel's investigator. (Hr. at 202.)
While the petitioner denied being prepared for her testimony, at the same time she testified that she did not remember much of her trial because some portions of the trial were too painful. (Hr. at 218-219.) She only vaguely remembers being asked by her trial counsel about past acts of violence by Oyola. (Hr. at 218.) She testified that she never read the trial transcript because it was "too painful." (Hr. at 228.) The petitioner denied knowing that prior to the day of her testimony that she would testify and yet her trial counsel announced in his opening statement that the petitioner would testify. (Hr. at 210-211.)
The petitioner has not established that trial counsel failed to investigate and develop an extreme emotional disturbance defense at trial. The petitioner's uncorroborated testimony about her trial counsel's lack of preparation was not credible.
Moreover, pre-trial investigation "necessarily depends upon leads provided by the client." United States v. Vargas, 871 F. Supp. 623, 624 (S.D.N.Y. 1994). As the state trial court found, the petitioner "has not demonstrated that most of these instances of family abuse and violence were divulged to either [trial] counsel or Dr. Goldstein prior to her trial." (R. at 19.) Nor is there a sufficient basis to conclude that the petitioner would have divulged this information if asked and that the failure to uncover this information was the fault of trial counsel. The petitioner gave trial counsel inconsistent accounts of events that occurred on the date of the stabbing and claimed not to recall actually stabbing Oyola. Dr. Goldstein reported the petitioner's reluctance to discuss the charges against her and the petitioner acknowledged that she probably was not ready to reveal any more information than she had already shared with Dr. Goldstein, much of which was elicited during the trial. Moreover, trial counsel's direct examination of the petitioner consisted of several open-ended questions that provided the petitioner opportunities to explain the events leading up to the stabbing, provide background, discuss how Oyola treated her and other family members, and explain how the petitioner could stab someone she loved. CR. at 481, 483-486, 496-498.)
Likewise, trial counsel's cross-examination of petitioner's mother, Mercedes Maldonado, was objectively reasonable under the circumstances. "Decisions whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature." Nersesian, 824 F.2d at 1321. Trial counsel specifically asked questions of Mercedes Maldonado aimed at eliciting testimony about Oyola's drinking and violent and abusive behavior. (R. at 347-354.) The trial court sustained some objections to questions asked of Mercedes Maldonado about Oyola's past conduct because it was not shown that the petitioner had knowledge of the acts in question, but trial counsel did attempt to elicit the information about Oyola's past conduct and was successful in eliciting some of it.
The petitioner specifically objects to her trial counsel's failure to interview her sister Maria Cotto, and to call Maria Cotto as a witness at trial. But she has failed to establish that this was ineffective assistance of counsel. Trial counsel's investigator made at least one attempt to speak with Maria, but was unsuccessful and it is not clear whether he made additional unsuccessful attempts to contact Maria. (Pet.'s Ex. 14.) It is also not clear that Maria was available and would have been willing to assist trial counsel. Maria admitted at the evidentiary hearing to distancing herself from her family after Oyola's death and during the petitioner's trial. (Hr. at 304-308.) She was not supportive of the petitioner during this time period: she did not visit the petitioner for two years after her arrest; she made no attempt to contact the petitioner's attorney; and she did not know when the trial occurred and "didn't ask too many questions." (Hr. at 308, 318-19.) While Maria Cotto now says that she would have been available to testify in her sister's defense if asked, that testimony is inconsistent with her detached conduct at the time. The petitioner has not shown that, at that time, Maria Cotto was a willing and helpful witness and that trial counsel did not make attempts to contact her.
Moreover, it could not be said that any failure to pursue Maria Cotto as a witness was objectively unreasonable. In both the petitioner's first videotaped statement and at trial, the petitioner stated that she had been trying to find marijuana for Maria the day of the stabbing. (February Video Tr. at 59-60; R. at 513.) The petitioner has now admitted that the testimony was not truthful. (Hr. at 201, 208-09.) Given trial counsel's legitimate concerns about the petitioner's credibility, it was reasonable not to pursue a witness who could have contradicted the petitioner's testimony about events on the critical day of the murder, particularly when there was no evidence of the specific helpful information that would have been obtained.
In the petitioner's brief, the petitioner argues that trial counsel's failure to call additional family members was objectively unreasonable, but, the petitioner has only provided evidence with respect to Maria Cotto. The petitioner has made no showing as to which other family members should have been called, what their testimony would have been and why that testimony would not have been cumulative of what the petitioner and Mercedes Maldonado could provide.
Finally, the decisions of the state trial court and the Appellate Division with respect to trial counsel's pursuit of the extreme emotional disturbance defense were not contrary to, or objectively unreasonable applications of the law established by the Supreme Court in Strickland and its progeny and thus there is no basis for relief under 28 U.S.C. § 2254(d)(1). See Williams, 120 S.Ct. at 1519; Francis, 221 F.3d at 111. Given the circumstances, it was reasonable to conclude that the petitioner's trial counsel's decisions regarding the extreme emotional disturbance defense had plausible strategic explanations and that the petitioner received effective assistance of counsel.
C.
The petitioner's also asserts that trial counsel committed a number of other errors, the cumulative effect of which constituted ineffective assistance of counsel. The petitioner claims that trial counsel was ineffective in failing to introduce physical evidence of Oyola's drinking and her high blood alcohol content at the time of her death to corroborate the petitioner's testimony that Oyola had been drinking rum on :he night that Oyola was murdered. But trial counsel's failure to introduce evidence of Oyola's drinking on the night of the stabbing does not constitute ineffective assistance of counsel in view of the fact that the assistant district attorney did not dispute the petitioner's testimony that Oyola had been drinking prior to the stabbing.
The petitioner also contends that her trial counsel was ineffective for not requesting an intoxication charge. The claim is without merit. Under New York law, "evidence of intoxication of the defendant may be offered by the defendant whenever it is relevant to negative an element of the crime charged." N.Y. Penal Law § 15.25. "A charge on intoxication should be given if there is sufficient evidence of intoxication in the record for a reasonable person to entertain a doubt as to the element of intent on that basis." People v. Perry, 462 N.E.2d 143 (N Y 1984); People v. Rivera, 554 N.Y.S.2d 115, 116 (App.Div. 1990)
In this case, there was no basis for an intoxication charge. The evidence that the petitioner was drinking on the night of the stabbing came solely from her testimony. Although the petitioner stated that she was drinking, she testified that she was only "slightly" drunk and "tipsy." (R. at 483, 498, 503.) She admitted that despite the drinks, she knew "more or less" what was going on and that she was not that drunk. CR. at 502-503.) The petitioner told Dr. Goldstein that she was feeling "`something,' but was not drunk." (Pet.'s Ex. S at 4.) This evidence is clearly insufficient to justify submitting an intoxication charge to the jury. See Shaird v. Scully, 610 F. Supp. 442, 447 (S.D.N.Y. 1985) (finding no factual basis for an intoxication defense based on testimony that the defendant "had been a little drunk'); People v. Cortez, 584 N.Y.S.2d 609, 610 (App.Div. 1992) (finding insufficient evidence regarding the quantity of liquor consumed and its consequent effects to warrant an intoxication charge); People v. Rios, 541 N.Y.S.2d 489, 490 (App.Div. 1989) (finding that, although the defendant had been drinking beer and brandy, there was no evidence that of intoxication warranting an intoxication charge).
D.
Finally, all of the petitioner's claims of ineffective assistance of counsel should be assessed as a whole. "[I]t is important to assess a claim of ineffective [assistance of] counsel not only by an examination of each specific instance of alleged incompetence, but also by assessing the lawyer's representation as a whole." Williams v. Senkowski, No. 97 Civ. 3887, 1999 WL 1024514, at *4 (S.D.N.Y. Oct. 1, 1999); see also Strickland, 466 U.S. at 690; Solomon v. Commissioner of Correctional Services, 786 F. Supp. 218, 226 (E.D.N.Y. 1992) Viewing trial counsel's representation as a whole demonstrates that trial counsel provided effective representation. After learning that the petitioner was claiming that DeJesus murdered Oyola, he had the petitioner take a polygraph test to establish her truthfulness. After the polygraph test indicated that she was not lying, he brought the petitioner to the assistant district attorney with what trial counsel apparently believed was a true statement naming DeJesus as the real killer in an attempt to get the charges against the petitioner dismissed. Upon discovering that the petitioner's statement was false, trial counsel, distraught and concerned about the petitioner's lying, had the petitioner examined by a psychiatrist, Dr. Goldstein, to determine her competence and to investigate whether a mental defense was available.
After receiving an equivocal report from Dr. Goldstein indicating that her ability to evaluate the petitioner was hampered by the petitioner's lack of memory of the stabbing, trial counsel received court approval to have the petitioner hypnotized in an effort to recover her memory of the event. (Pet.'s Ex. 5.) This session failed to uncover useful information.
The petitioner has provided evidence in the form of a handwritten document indicating that the petitioner was "[p]ut under hypnosis by John Halpin," and "went back to the time of occurrence," and stated that "Grandmother called her bad name [and] [s]he went out of her mind." She argues that this indicates that the hypnosis session should have led trial counsel to consult again with Dr. Goldstein. This document, however, is not reliable because it is not clear who wrote the document, whether it was based on first-hand information, or in what context it was made. Moreover, the written statements did not provide any new information. It was already known, at least from Dr. Goldstein's report, that Oyola was "nagging" the petitioner that day. (Pet.'s Ex. 5 at 4.) The notation "She went out of her mind" is not significantly different from what the petitioner had already told Dr. Goldstein — that she "just went off." (Pet.'s Ex. 5 at 4.)
At that point, trial counsel was faced with the brutal facts that showed that the petitioner had stabbed her 79-year old grandmother numerous times and left her to die. The petitioner undisputedly had the sufficient presence of mind to engage in an effort to cover up her crime by attempting to make it look like a robbery and then she lied about what she had done on at least two occasions, including attempting to implicate an innocent person in the murder. Given these facts, trial counsel pursued the defense of extreme emotional disturbance. He questioned both the petitioner and her mother about Oyola and provided the opportunity for the petitioner to discuss instances of abuse. Considering the totality of the circumstances, at the time, and assessing trial counsel's representation as a whole, it cannot be said that trial counsel's representation of the petitioner was objectively unreasonable such that the petitioner was denied the effective assistance of counsel.
CONCLUSION
For the reasons explained above, the petition for habeas corpus is denied. A certificate of appealability may issue in a case only if the applicant has made a substantial showing of the denial of a constitutional right. See 28 U.S.C. § 2253 (c)(2); Hooper v. United States, 112 F.3d 83, 88 (2d Cir. 1997). "The certificate of appealability . . . shall indicate which specific issue or issues satisfy the showing required by [§ 2253(c)(2)]." 28 U.S.C. § 2253(c)(3). The Court of Appeals for the Second Circuit has held that the standard for granting a certificate of appealability is the same as the prior standard for granting a certificate of probable cause. See Nelson v. Walker, 121 F.3d 828, 832 n. 3 (2d Cir. 1997). In order to be granted a certificate of appealability, "[t]he petitioner need not show that (the petitioner] should prevail on the merits." United States v. Rosario, 96 Civ. 2733, 1997 WL 639039, at *1 (S.D.N.Y. Oct. 15, 1997); see also Lucidore v. New York State Division of Parole, 209 F.3d 107, 112 (2d Cir.), cert. denied, 121 S.Ct. 175 (2000). Instead, the petitioner need only demonstrate: (1) that the issues are debatable among jurists of reason; (2) that a court could resolve the issues in a different manner; or (3) that the questions are adequate to deserve encouragement to proceed further. Lucidore, 209 F.3d at 112 (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983)).
For the reasons explained above, the Court is convinced that the petitioner has not established that she is entitled to federal habeas corpus relief. However, the issue of whether the petitioner was denied effective assistance of counsel because her trial counsel failed to investigate adequately and develop the facts underlying an extreme emotional disturbance defense at trial, including the failure to call Dr. Goldstein, is an issue that is debatable among jurists of reason and a court could resolve the issue in a different manner. Thus, the Court will certify that the petitioner has made a substantial showing of the denial of a constitutional right.
The petition for habeas corpus is therefore dismissed. The Clerk is directed to enter judgment dismissing the petition and closing the case. The Court issues a certificate of appealability as explained above.
SO ORDERED.