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denying unexhausted claims found to be "plainly without merit" and "patently frivolous"
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04 Civ. 6132 (SAS).
January 22, 2008
Petitioner (Pro Se): Charles Davis, #00A-1561, Green Haven Correctional Facility, Stormville, NY.
For the Respondent: Leilani Rodriguez, Nancy D. Killian, Assistant District Attorneys, Office of the Bronx District Attorney, Bronx, New York.
OPINION AND ORDER
I. INTRODUCTION
Charles Davis, proceeding pro se, brings this petition for a writ of habeas corpus pursuant to section 2254 of Title 28 of the United States Code ("section 2254"). Davis seeks release from a sentence he is now serving following his conviction in the Supreme Court of New York, Bronx County, on February 4, 2000. Davis claims the People failed to prove his intent to cause serious injury beyond a reasonable doubt, in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution. He also claims he received ineffective assistance of both trial counsel and appellate counsel, in violation of his rights under the Sixth Amendment of the United States Constitution.
II. BACKGROUND
A. Offense Conduct
On April 26, 1997, Davis fought with Yolanda Mack and her companion Jose Bonilla near the corner of 225th Street and Broadway. The fight concerned the whereabouts of Mack's daughter Mia, who was missing and under a Persons in Need of Supervision (PINS) warrant. Although many facts were disputed at trial, it was established that Davis, Mack and Bonilla all ran into a nearby pizzeria in the course of the fight. Bonilla ran to the interior of the pizzeria, and Mack tried to block Davis from pursuing Bonilla. Davis then pointed a gun at Mack's chest, and as she pushed the gun away it fired. The gunshot hit Mack in the upper left arm.
B. Procedural History
1. Pretrial Activity
An indictment filed on October 20, 1997 charged Davis with Attempted Murder in the Second Degree, Assault in the First Degree, Criminal Possession of a Weapon in the Second Degree, and Criminal Possession of a Weapon in the Third Degree. On July 15, 1998, following a Huntley hearing, the court denied Davis' motion to suppress a statement he made while in custody, finding that the statement was made spontaneously.
See New York Penal Law ("N.Y.P.L.") § 110.10/125.25.
See N.Y.P.L. § 120.10(1).
See N.Y.P.L. § 265.03.
See N.Y.P.L. § 265.02(4) (repealed, 2006 N.Y. Sess. Laws 742 § 8467).
See People v. Huntley, 15 N.Y.2d 72 (1965).
2. Trial
Trial began on May 11, 1999. The People presented evidence from several witnesses. Yolanda Mack testified that she and Bonilla knocked on the door of an apartment where she had heard her daughter Mia might be staying, and Melinda Ricardo, Davis's niece, answered the door. Ricardo told Mack that Mia was not there, but her uncle was looking for Mack and would meet her down the block. Mack and Bonilla went to the street to call the police for assistance in locating Mia when they saw Davis and another man approaching.
See Trial Transcript ("Tr.") at 37-38.
See id.
See id. at 40-41.
Mack testified that Davis punched Bonilla and a fistfight ensued, during the course of which she saw a gun fall from Davis's jacket. She picked up the gun and held it by the barrel, but Davis pried it away from her. Bonilla and Mack both testified that Mack dragged Bonilla into the pizzeria to get him away from Davis, who followed them inside with the gun. The owner of the pizzeria, Esad Vusanjin, and Jaime Jimenez, a New York City Transit Authority track supervisor who observed part of the fight, also testified that Davis entered the pizzeria after Mack and Bonilla were inside.
See id. at 42-43.
See id. at 43.
See id. at 45, 157.
See id. at 283, 505.
Mack testified that, inside the pizzeria, Davis tried to get past her to reach Bonilla, who was further back inside the restaurant, but she would not let him get by. She then testified that Davis pushed her against the counter and placed the gun to her chest. She stated, "I just looked at his eyes and I knew he was going to shoot." Mack testified that she didn't "know if [the gun] was being shot when I was pushing it," but stated that she was pushing it away slowly when it went off.
See id. at 45.
See id.
Id.
Id. at 105-06.
See id. at 141.
Both Mack and Bonilla testified that after the shot, Davis moved toward Bonilla and the two struggled for the gun on the floor of the pizza shop. After Mack regained awareness, she tackled Davis, and she and Bonilla were able to take the gun away from him and pin him to the ground. Soon afterward, Transit Police Officer Locayo arrived and arrested Davis after people in the restaurant identified him as the shooter.
See id. at 47, 158.
See id. at 47-49.
See id. at 354.
Locayo testified that he vouchered the jacket Davis had been wearing and stated that it had no pockets. He also had the gun vouchered and tested. Detective Joseph Treese, a firearm examiner in the New York Police Department, testified that the gun could function as either a single or double action firearm. As a single action firearm, it would release the bullet with one action of the hammer which required seven to seven and one-quarter pounds of pressure to the trigger; as a double action firearm, the hammer must make first a backward motion and then a forward motion for the bullet to release, and required nine and one-quarter to nine and one-half pounds of pressure to the trigger.
See id. at 382, 384.
See id. at 365-67.
See id. at 427.
See id. at 426, 429.
Davis relied primarily on the testimony of Melinda Ricardo, his niece. Ricardo testified that Mack, in an extremely agitated state, knocked on the door of the apartment where Ricardo had been working as a full-time babysitter and threatened to hurt Ricardo if she couldn't find her daughter Mia. Ricardo managed to push the door closed and then went to see her grandmother, who lived around the corner because Mack and Bonilla had come to her grandmother's home a few weeks earlier looking for Mia. After speaking briefly with her grandmother, Ricardo went out to the street where she met Davis and told him what had happened.
See id. at 553-55.
See id. at 555-56.
See id. at 556.
Ricardo testified that as she walked down the block with Davis and her boyfriend Wayne, they saw Mack and Bonilla. She testified that Bonilla approached Davis and punched him, and a fistfight ensued during which Davis dropped his pager. Then, as Ricardo reached to pick up the pager, Mack pointed a gun at Ricardo. As Davis, Bonilla and Mack struggled for control of the gun, they all entered the pizzeria together. Ricardo testified that she did not see who had the gun as the three entered the pizzeria. She remained outside on the street, and ran away when she heard a gunshot.
See id. at 557.
See id. at 558-59.
See id. at 559.
See id. at 561-63.
See id. at 563.
See id. at 564.
Davis also presented testimony from Detective Tyrone Ramsey, who interviewed Jimenez, the transit worker who witnessed part of the fight. Ramsey testified that Jimenez told him that after Davis took the gun from Mack, he hid behind a truck.
See id. at 541.
At the conclusion of trial, the jury convicted Davis of one count of Assault in the First Degree, in violation of section 120.1(1) of the N.Y.P.L. As a "persistent violent felony offender," Davis was sentenced to an indeterminate term of imprisonment of twenty-two years to life.
See N.Y.P.L. § 70.08(2) ("When the court has found . . . that a person is a persistent violent felony offender the court must impose an indeterminate sentence of imprisonment, the maximum term of which shall be life imprisonment. The minimum period of imprisonment under such sentence must be in accordance with subdivision three of this section.").
3. Appeal
Davis appealed his conviction to the Appellate Division, First Department, arguing that the evidence was insufficient for the jury to find intent to cause serious physical injury. On December 10, 2002, the Appellate Division affirmed the conviction, stating:
The verdict was based on legally sufficient evidence and was not against the weight of the evidence. The jury reasonably could have inferred intent to cause serious physical injury based on evidence of defendant's conduct before, during and after the shooting of the victim, including the fact that defendant followed the victim and another person into a store, shoved the victim against a counter, turned and pointed a gun at her chest and fired a shot, which struck the victim in the arm as she pushed the gun away. . . .
People v. Davis, 300 A.D.2d 78 (1st Dep't 2002).
People v. Davis, 300 A.D.2d 78 (1st Dep't 2002).
Davis petitioned the Court of Appeals for leave to appeal, which the court denied on March 31, 2003.
See People v. Davis, 99 N.Y.2d 627 (2003).
4. Writ of Error Coram Nobis
On June 16, 2004, Davis filed a petition for a writ of habeas corpus with this Court. On September 7, 2004, I ordered that the petition be stayed to give Davis an opportunity to file a writ of error coram nobis in New York State Supreme Court.
Davis applied for a writ of error coram nobis on the ground of ineffective assistance of appellate counsel, arguing that his appellate counsel was constitutionally ineffective for failing to raise the issue of ineffective assistance of trial counsel on appeal. The Appellate Division, First Department, summarily denied that application on March 8, 2005, and the New York Court of Appeals denied permission to appeal on May 31, 2005.
People v. Davis, 4 N.Y.3d 885 (2005).
Thereafter, Davis filed an amended petition for a writ of habeas corpus with this Court on June 15, 2005. In addition to the original petition's claim that evidence in the record was insufficient to establish Assault in the First Degree, the amended petition added the claims of ineffective assistance of both trial and appellate counsel that Davis advanced in his coram nobis motion.
III. LEGAL STANDARD
1. Standard of Review
A. Section 2254
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides that a federal court may hear a petition for habeas corpus relief from a state prisoner only "on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." The statute further provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.
A state court's decision is "contrary to" federal law "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 [the Supreme Court] has on a set of materially indistinguishable facts." A decision is an "unreasonable application of" federal law if "the state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case."
Williams v. Taylor, 529 U.S. 362, 413 (2000) (O'Connor, J., concurring and writing for the majority as to Part II of the opinion).
Id.
2. Statute of Limitations
Under section 2244(d)(1) of Title 28 of the United States Code, a state prisoner must file a habeas petition in federal court within one year from the date his conviction becomes final. The limitations period runs from the "date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Because New York defendants may seek certiorari review before the United States Supreme Court within ninety days of denial of leave to appeal by the New York Court of Appeals, usually the limitations period begins to run ninety days after denial of leave to appeal by the New York Court of Appeals.
Id.
See McKinney v. Artuz, 326 F.3d 87, 96 (2d Cir. 2003) (citing Sup. Ct. R. 13).
The one-year limitations period is tolled while a "properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." In addition, the one-year limitations period is not jurisdictional and may be tolled for equitable reasons in "rare and exceptional circumstances."
Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
3. Exhaustion Requirement
Section 2254 provides that a habeas petition by a state prisoner may not be granted unless "the applicant has exhausted the remedies available in the courts of the State." In order to satisfy the exhaustion requirement, a prisoner must have "`fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts,'" either in the form of "explicit constitutional arguments" or simply by "alleging facts that fall `well within the mainstream of constitutional litigation.'" In New York, a prisoner may exhaust a claim not raised on appeal through collateral proceedings, such as an application for a writ of error coram nobis. Whether on direct appeal or in a collateral proceeding, the claim must be presented to "the highest state court from which a decision can be had."
Turner v. Artuz, 262 F.3d 118, 123 (2d Cir. 2001) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)).
Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995) (quoting Daye v. Attorney General, 696 F.2d 186, 192-94 (2d Cir. 1982) (en banc)).
See, e.g., Figueroa v. Portuondo, 96 F. Supp. 2d 256, 276 (S.D.N.Y. 1999) (citing Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981); Johnson v. Metz, 609 F.2d 1052, 1055-56 (2d Cir. 1979)).
Daye, 696 F.2d at 190 n. 3.
Prior to AEDPA, district courts were required to dismiss any petition containing unexhausted claims. Under the AEDPA amendments, however, district courts have discretion to deny a petition on the merits "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." No standard has been established in the Second Circuit to guide district courts in the exercise of this discretion, but many district courts have chosen to deny unexhausted claims that are "patently frivolous." The Supreme Court has noted that "plainly meritless" claims should be denied rather than dismissed for failure to exhaust. The Third, Fifth and Ninth Circuits have held that section 2254(b)(2) embodies the Supreme Court's pre-AEDPA holding in Granberry v. Greer that a court may deny an unexhausted claim on the merits if it is "perfectly clear that the applicant does not raise even a colorable federal claim."
See Rose v. Lundy, 455 U.S. 509, 522 (1989).
Naranjo v. Filion, No. 02 Civ. 5549, 2003 WL 1900867 (S.D.N.Y. Apr. 16, 2003) (collecting cases). The court in Naranjo noted that the Second Circuit applied the "patently frivolous" standard in Jones v. Senkowski, No. 00-2145, 2001 WL 1230800 at *4 (2d Cir. Oct. 5, 2001), which was then vacated and withdrawn by Jones v. Senkowski, No. 00-2145, 2002 WL 246451 (2d Cir. May 22, 2002), amended by Jones v. Senkowski, 42 Fed. Appx. 485 (2d Cir. 2002). Id. at *8 n. 14.
Rhines v. Weber, 544 U.S. 269, 277 (2005) (noting that in light of section 2254's grant of discretion to deny unexhausted claims on the merits, the decision to stay a habeas petition to allow a petitioner to exhaust plainly meritless claims would be an abuse of discretion).
481 U.S. 129, 135 (1987). For cases adopting this standard, see Cassett v. Stewart, 406 F.3d 614, 623 (9th Cir. 2005), cert. denied, 546 U.S. 1172 (2006); Jones v. Morton, 195 F.3d 153, 156 n. 2 (3d Cir. 1999) ("[section] 2254(b)(2) is properly invoked only when it is perfectly clear that the applicant does not raise even a colorable federal claim); Mercadel v. Cain, 179 F.3d 271, 276 n. 4 (5th Cir. 1999) ("[W]e cannot say that it is perfectly clear that the applicant does not raise even a colorable legal claim, and denial of relief under § 2254(b)(2) is therefore inappropriate").
4. Procedural Bar
As a matter of federalism, federal courts may not review a habeas claim if it was defaulted in state court pursuant to an independent and adequate state procedural rule. This rule extends to habeas review the applicable standard on direct review, and allows "state courts . . . to address those claims in the first instance." In order for a claim to be barred from habeas review, the state court "must actually have relied on the procedural bar as an independent basis for its disposition of the case."
See Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
Id. at 732.
See Harris v. Reed, 489 U.S. 255, 261-62 (1989) (internal citations omitted).
In general, for the procedural bar to apply reliance on state law must be "clear from the face of the opinion." Because the basis for a state court decision is often unclear, the Supreme Court held in Harris v. Reed that federal courts may review a habeas petition when the state court decision "fairly appears to rest primarily upon federal law, or to be interwoven with the federal law." In Coleman v. Thompson, however, the Supreme Court declined to establish a per se presumption that a decision was based on federal law when a petitioner had presented federal claims to a state court, holding instead that the Harris presumption does not apply to affirmances without opinion unless there is "good reason to question whether there is an independent and adequate state ground for the decision."
Coleman, 501 U.S. at 735. Accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000).
Harris, 489 U.S. at 261.
Coleman, 501 U.S. at 739. Accord Fama, 235 F.3d at 809-10.
If the state court holding contains a statement that a claim is procedurally barred, but reaches the merits in the alternative, habeas review is inappropriate; in contrast, if the state court uses language such as "the claims are either unpreserved or without merit," the claims are subject to federal court review. Finally, if the state court issues no opinion and both procedural and substantive arguments are made in the briefs, the Second Circuit has held that the decision is presumed to be on state procedural grounds.
Harris, 489 U.S. at 264 n. 10.
See Fama, 235 F.3d at 810.
See id. (citing Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993)).
Even if his claims are procedurally barred under state law, a petitioner may still obtain habeas review if he "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.
B. Sufficiency of the Evidence
The Due Process Clause of the Fourteenth Amendment prohibits conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." A habeas corpus petitioner is therefore entitled to relief when the federal court determines that "upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." The evidence must be viewed in the light most favorable to the prosecution.
In re Winship, 397 U.S. 358, 364 (1970).
Jackson v. Virginia, 443 US 307, 324 (1979).
See id. at 319.
In New York, a person is guilty of Assault in the First Degree when the People prove that the person, "with the intent to cause serious physical injury to another person, cause[d] such injury to such person or to a third person by means of a deadly weapon or dangerous instrument." The jury may infer intent from the criminal act itself, or from "the defendant's conduct and the surrounding circumstances." C. Sixth Amendment Right to Counsel
N.Y.P.L. § 120.10(1).
People v. Bracey, 41 N.Y.2d 296, 301 (1977).
The Sixth Amendment of the United States Constitution provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." Included in that guarantee is the right to effective assistance of counsel. The Supreme Court established the standard for ineffective assistance of counsel in Strickland v. Washington, which held that a petitioner must prove both (1) that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."
U.S. Const. amend. VI.
See McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (collecting cases).
466 U.S. 668, 688, 694 (1984).
There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," and courts must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case." A defendant "must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.'"
Id. at 689, 690.
Id. at 698 (quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955)).
The Strickland test applies to claims of ineffective assistance of appellate counsel as well as ineffective assistance of trial counsel. Appellate counsel's performance will not be deemed constitutionally deficient simply for failing to raise every colorable argument on appeal. However, "a petitioner may establish constitutionally inadequate performance if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker."
See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992).
See Jones v. Barnes, 463 U.S. 745, 754 (1983).
Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994).
IV. DISCUSSION
A. Sufficiency of the Evidence
In his original petition, Davis claimed that the government failed to prove his intent to cause serious physical injury beyond a reasonable doubt, and that the verdict was against the weight of the evidence. Because these are the same issues he raised on direct appeal, the claims are fully exhausted. However, a claim that the verdict was against the weight of the evidence is not cognizable under section 2254 because it does not present a federal constitutional issue.
See Pitter v. Fischer, 234 F. Supp. 2d 342, 349 n. 6 (S.D.N.Y. 2002).
A petitioner "`bears a very heavy burden'" when challenging the sufficiency of the evidence in a state criminal conviction. Viewing the evidence in the light most favorable to the prosecution, the evidence adduced at trial is sufficient for a rational trier of fact to have found that Davis committed the crime of Assault in the First Degree.
Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1996) (quoting Quirama, 983 F.2d at 14).
The court must evaluate the sufficiency of the evidence "with explicit reference to the substantive elements of the criminal offense as defined by state law." Under New York law, to prove Assault in the First Degree the government must show that the defendant had intent to cause serious physical injury to another person, and did in fact cause such injury to that person or a third person by using a deadly weapon or other dangerous instrument.
Jackson, 443 U.S. at 324 n. 16. Accord Einaugler, 109 F.3d at 841.
See N.Y.P.L. § 120.10(1).
Mack and her treating physician Mark Berkson both testified that Mack suffered a serious physical injury from the gunshot wound. Mack suffered a fractured and shattered humerus bone, torn muscles, and nerve damage. She required several surgeries, including the insertion of a metal rod in her upper arm, and continued to suffer from a limited range of motion at the time of trial. The evidence also established that Davis caused the injury by using a firearm, a deadly weapon.
A "serious physical injury" is "physical injury which creates a substantial risk of death, or which causes death, or which causes death or serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ." N.Y.P.L. § 10.00(10).
See Tr. at 307-08.
See id. at 51-53; 309, 313, 315-16.
The principal claim by Davis, and the one raised in his appeal, is that the evidence was not sufficient to prove he possessed the requisite intent to injure Mack. While a jury conceivably could have inferred from the facts that Davis intended only to threaten Mack and the gun fired accidentally, it did not reach that conclusion. "Competing inferences to be drawn, if not unreasonable, are within the exclusive domain of the finders of fact." Viewing the evidence in the light most favorable to the prosecution, a rational juror could have inferred that Davis intended to seriously injure Mack. Several witnesses testified that Davis followed Bonilla and Mack into the pizza shop while holding the gun. Mack testified that Davis placed the gun to her chest, and stated that she pushed it away slowly as it fired. Bonilla testified that after the gunshot, Davis went after Bonilla and pointed the gun at his head. Further, a ballistics expert testified that the gun required a certain amount of pressure to discharge, which the jury could reasonably have concluded would not have resulted when Mack pushed the gun away from her chest.
People v. Barnes, 50 N.Y.2d 375, 381 (1980).
See Tr. at 44-45, 102, 109 (Mack); 383 (Transit Authority worker Jimenez); 505 (pizza shop owner Esad Vusanjin).
See id. at 45, 55, 104, 144.
See id. at 159, 252, 254-55.
See id. at 426, 429.
As the Appellate Division held, these facts are sufficient to support an inference of intent to cause serious physical injury. Because there is sufficient evidence in the record to allow a rational juror to find that Davis committed each element of the crime beyond a reasonable doubt, the state courts' decisions are not contrary to or an unreasonable application of Supreme Court precedent.
See People v. Davis, 300 A.D.2d 78 (1st Dep't 2002). New York courts have upheld inferences of intent to cause serious injury in cases with similar facts. See, e.g., People v. Stoby, 4 A.D.3d 766 (3d Dep't 2004) (evidence that defendant swung knife at defendant, stabbing him in back, sufficient to establish intent); People v. Appuzie, 9 A.D.3d 273 (1st Dep't 2004) (intent reasonably inferred from defendant's conduct of firing shot at victim at close range); People v. Kenward, 266 A.D.2d 155 (1st Dep't 1995) (intent inferred from evidence that defendant threatened victim and thrust knife at him).
B. Ineffective Assistance of Trial Counsel
Davis claims that his trial counsel was constitutionally inadequate for several reasons. He claims that he was prejudiced by counsel's failure to: (1) object to the court's decision not to excuse a juror who was suspected of misrepresenting her contacts with the criminal justice system during voir dire; (2) request a mistrial after the jury sent a note asking whether they could consider inadequate legal representation in their deliberations; (3) object to the government's destruction and nonproduction of 911 tapes; (4) object to or move to suppress a ballistics report request form filled out by someone other than the arresting officer; (5) investigate potential witnesses; (6) move to dismiss based on insufficient evidence; and (7) object to the State's repeated pretrial adjournment requests.
1. Exhaustion
Davis has not directly raised the issue of ineffective assistance of trial counsel before a state court. Instead, in his motion for a writ of error coram nobis, he argued that appellate counsel was ineffective for failure to raise the issue of ineffective assistance of trial counsel. This procedural posture, combined with the Appellate Division's summary denial of the coram nobis motion, complicates the issue of whether Davis has exhausted his claims of ineffective assistance of trial counsel. The State's position is that Davis' claims are unexhausted, but should be denied on the merits nevertheless because they are "patently frivolous and completely without merit." Some of Davis' claims are exhausted, others are not.
When a claim of ineffective assistance of trial counsel is not raised on direct appeal, is should be raised in a post-conviction motion to vacate judgment under New York Criminal Procedure Law section 440.10 ("section 440.10"). In contrast, a "coram nobis motion to the Appellate Division addresses errors at the appellate level . . . not trial errors," and is the means to raise ineffective assistance of appellate counsel claims in New York.
See People v. Brown, 45 N.Y.2d 852, 853-54 (1978); see also Caballeros v. Keane, 42 F.3d 738, 740 (2d Cir. 1994). Section 440.10 allows a defendant to bring a collateral proceeding to vacate a judgment in the court that entered the judgment on several statutory grounds, including that "[t]he judgment was obtained in violation of a right of the defendant under the constitution of this state or of the United States." N.Y.C.P.L. § 440.10(1)(h).
Ehringer v. Miller, 928 F. Supp. 291, 294 (S.D.N.Y. 1996).
See People v. Bachert, 69 N.Y.2d 593 (1987).
In Aparicio v. Artuz, the Second Circuit held that an ineffective assistance of trial counsel claim, raised before a state court as an underlying issue in a coram nobis motion arguing ineffective assistance of appellate counsel, was actually exhausted. Like Davis, Aparicio argued that his appellate counsel was ineffective for failing to raise a claim of ineffective assistance of trial counsel on appeal. In denying the coram nobis motion on the basis that appellate counsel's performance was constitutionally adequate, the Second Circuit found that the state court had also adjudicated the underlying trial counsel claims. Therefore, although the Appellate Division "did not even acknowledge [the] existence" of the trial counsel claim, that claim was exhausted for the purpose of section 2254.
269 F.3d 78, 92 (2d Cir. 2001).
Id. The trial counsel claim that petitioner claimed appellate counsel should have raised on appeal had been "as a technical matter, adjudicated," in contrast to other ineffective assistance of trial counsel claims not raised in the coram nobis motion. Id.
Id.
The reasoning in Aparicio applies to the five of Davis' trial counsel claims that rest on facts within the trial record, which could have been raised on direct appeal. These claims — failure to request a mistrial after the jury sent a note asking whether they could consider inadequate legal representation, failure to object to the government's nondisclosure of 911 tapes, failure to object to or move to suppress a ballistics report, failure to object to the judge's decision not to exclude a juror suspected of misrepresenting information on voir dire, and failure to move to dismiss based on insufficient evidence — are therefore exhausted by Davis' coram nobis motion.
The remaining two claims — failure to investigate potential witnesses and failure to object to adjournments — rely on facts outside the record and could not have been raised on direct appeal. Appellate counsel therefore could not have been constitutionally deficient for failing to raise these claims on appeal, and the Appellate Division's decision on the coram nobis motion did not adjudicate the claims. These two claims are properly raised on a motion to vacate under section 440.10, which Davis has not made. Therefore, they are unexhausted.
Section 440.10 is generally used when ineffective assistance of counsel claims rest on evidence outside the trial record, for example claims that counsel conducted the defense under the influence of drugs or failed to adequately investigate facts. See Otero v. Stinson, 51 F. Supp. 2d 415, 419 (S.D.N.Y. 1999) ("The trial record here cannot reveal whether trial counsel failed to adequately investigate. . . . Otero's allegation are [sic] precisely the type of claim for which further evidentiary exploration by the trial court are [sic] necessary. . . . .").
See id. ("[B]ecause Otero failed to properly raise this [ineffective assistance of trial counsel] claim in a § 440.10 motion in the trial court, and he still may do so, his ineffective assistance of trial counsel claim is not exhausted."); see also Ehringer, 928 F. Supp. at 294.
In this case, however, it is appropriate to exercise the discretion afforded under the AEDPA amendments and deny these unexhausted claims on the merits. As discussed below, the claims are plainly without merit, and are patently frivolous because none of the facts Davis alleges could rise to the level of a constitutional violation.
See Hammond v. Walker, 224 F. Supp. 2d 544, 549 (W.D.N.Y. 2002) (addressing merits of ineffective assistance of trial counsel claim although petitioner did not exhaust claim by filing a motion to vacate under section 440.10).
2. Procedural Bar
The next issue is whether the exhausted trial counsel claims are procedurally barred under section 2254, and thus exempt from federal habeas review. The operative state procedural rule, found in section 440.10(2)(c), requires a court to deny motions to vacate brought under this section when, "[a]lthough sufficient facts appear on the record" to permit review on appeal, "no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal . . . [or] to raise such ground or issue upon an appeal actually perfected by him." This provision bars Davis from raising his trial counsel claims based on facts within the record in a 440.10 motion, because the appellate division has already held that appellate counsel provided Davis effective assistance.
N.Y.C.P.L. § 440.10(2)(c).
See Aparicio, 269 F.3d at 91 (where appellate court had rejected coram nobis motion claiming ineffective assistance of appellate counsel, "any state court to which Petitioner might now present this [ineffective assistance of trial counsel] claim would almost certainly find it procedurally barred" under section 440.10).
In Aparcio, the Second Circuit held that section 440.10 barred the Appellate Division from hearing the merits of the underlying trial counsel claim in petitioner's coram nobis motion, and was therefore the ground on which the court denied that claim. Although the Appellate Division's opinion addressed only appellate counsel claims, the Second Circuit reasoned that since the appellate court denied the entire motion, it must have also denied the underlying claim of ineffective assistance of trial counsel. Given that the ineffective assistance of appellate counsel claim was without merit, which "disposed of [petitioner's] only proffered cause for the failure to raise the trial counsel claim on direct appeal," the court was required to deny the trial counsel claim under section 440.10's prohibition on collateral review of claims not raised on appeal. Therefore the court held that the trial counsel claim was procedurally barred from habeas review.
See id.
Id. at 93.
The facts in this case are very similar to those in Aparicio. In this case, the Appellate Division denied the coram nobis motion in a summary denial without an opinion. Despite the lack of information from the Appellate Division regarding the basis of its decision, Aparicio is controlling. A state court decision without opinion is presumed to have denied the claims on procedural grounds, "unless there is `good reason to question whether there is an independent and adequate state ground for the decision.'" As in Aparicio, no good reason exists here; in fact, once the Appellate Division denied the ineffective assistance of counsel claims neither it nor any other court could hear the trial counsel claims under section 440.10, because there was no justification for Davis' failure to raise those claims on direct appeal.
Quirama, 983 F.3d at 14 (quoting Coleman, 501 U.S. at 739).
Because the claims have been defaulted under a state procedural rule, federal habeas review is precluded for Davis' claims that trial counsel was ineffective because he failed to object to the inclusion of a juror, request a mistrial after the jury sent a note asking whether they could consider inadequate legal representation, object to the government's nondisclosure of 911 tapes, object to or move to suppress a ballistics report, and move to dismiss based on insufficient evidence.
3. Failure to Investigate Potential Witnesses
Davis also claims that his trial counsel was constitutionally inadequate because he failed to seek out other witnesses to the fight who could testify for the defense. The basis for Davis' complaint is a notebook entry from the police investigation of the incident that was provided to defense counsel. The nature of the entry and its author are unclear. It describes a statement by an unidentified witness that Bonilla "walk[ed] in with handgun" looking for defendant Davis. According to Davis, based on this note trial counsel should have searched the area for other witnesses who could have testified that Bonilla approached Davis with a handgun. Davis also names a potential witness in his petition but provides no other information about who she is, what she witnessed, how she would have testified, or how Davis knows of her existence.
Notebook entry, Ex. D to Amended Petition.
In general, "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." When a petitioner claims ineffective assistance of counsel due to failure to investigate, counsel's decision "must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." In cases where petitioner has "failed to identify any specific evidence or testimony that would have helped his case if presented at trial," however, courts should hesitate to second-guess counsel's strategy.
Strickland, 466 U.S. at 690.
Id. at 691.
Jones v. Hollins, 884 F. Supp. 758, 766 (W.D.N.Y. 1995) (citing United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)). Accord Buitrago v. Scully, 705 F. Supp. 952, 955 (S.D.N.Y. 1989) (trial counsel not ineffective for failing to provide alibi witnesses when petitioner has not shown that witnesses would in fact provide alibi).
Davis' conclusory allegations of failure to investigate do not provide sufficient information to conclude that counsel acted unreasonably. Even if the notebook entry indicated that a witness had seen Bonilla threaten Davis with the handgun first, testimony to that effect would not negate or cast doubt on the prosecution's case that Davis was threatening Mack with the gun at the time it went off. Nor would such testimony negate an inference of intent to harm Mack at the time the shot was fired. Counsel's decision not to investigate nameless potential witnesses when their testimony would not contribute substantially to Davis' defense is not unreasonable.
Even if counsel were unreasonable in failing to investigate, Davis cannot meet the second prong of the Strickland test because he cannot show a reasonable possibility that had counsel investigated potential witnesses, the outcome of his case would have been different. Davis gives no information about the only person he identifies as a possible witness, including what her testimony might have been. The notebook entry is not sufficient to show a reasonable possibility that counsel's investigation would have identified witnesses whose testimony would negate evidence of Davis' intent to cause physical injury to Mack when he fired the gun. Trial counsel was therefore not constitutionally deficient in not investigating possible witnesses based on the notebook entry.
4. Failure to Object to Requests for Adjournment
Davis also argues that his counsel was ineffective for failing to object to the prosecution's repeated requests for continuances during pre-trial proceedings. He contends that the State was attempting to stall the trial and intended to prevent the defense from presenting witnesses with a fresh recollection, and notes that when he brought the possibility of such a tactic to his counsel's attention he was "met with stiff resistance and discouraged from bringing the subject up."
Amended Petition ¶¶ 38-39.
However, Davis has not raised a speedy trial issue, nor has he alleged that the memory of any witness was so diminished by the passage of time that the witness was unable to recall events clearly or was unable to testify. He therefore cannot establish that he was prejudiced by counsel's failure to object to the State's requests for continuances, and under the second prong of the Strickland standard his claim must fail.
C. Ineffective Assistance of Appellate Counsel
Davis has exhausted the claim that appellate counsel was ineffective by bringing it to state court on a motion for a writ of error coram nobis. He raises the same claim in his amended habeas petition, alleging that by electing not to raise issues of ineffective assistance of trial counsel on appeal, appellate counsel failed to provide constitutionally adequate representation. Davis has failed to show that the state court's denial of his coram nobis motion was contrary to or an unreasonable application of clearly established federal law.
Appellate counsel's failure to raise a claim, even if that claim may be meritorious, is not sufficient to show ineffective assistance. Counsel is not required to advance every nonfrivolous argument that could be made. If counsel omits "significant and obvious issues while pursuing issues that were clearly and significantly weaker," however, her performance may be constitutionally defective. "[O]nly when ignored issues are clearly stronger than those presented, will the presumption of effective assistance of counsel be overcome."
See Jones, 463 U.S. at 754.
Mayo, 13 F.3d at 533.
Id.
The trial counsel issues that appellate counsel could have raised on appeal are not stronger than the issue she did argue. As she wrote in a letter to Davis attached as an exhibit to his amended petition, appellate counsel chose to pursue the issue of insufficiency of the evidence to prove intent because she believed it was a stronger claim, stating that "a reversal on the ground of ineffective assistance of trial counsel is very difficult to achieve."
Davis argues that appellate counsel should have made an ineffective assistance of trial counsel argument based on several of counsel's actions; however, none of the defects Davis complains of could have been the basis for a successful appeal. First, he claims that trial counsel should have moved for a trial order of dismissal on the ground that the State failed to make a prima facie case. In fact, trial counsel did make such a motion, which the court denied. Although the State argued on appeal that the motion was not specific enough to preserve the argument, the Appellate Division addressed the issue of sufficiency of the evidence and therefore Davis suffered no prejudice from trial counsel's alleged deficiency.
See Tr. at 534-35.
The next claimed deficiency was counsel's alleged failure to raise a Rosario objection when the State's did not produce the 911 tape of Mack's call during the fight. During an exchange with the court, however, counsel requested an adverse inference instruction based on the absence of the tape, which the State claimed had been destroyed; the court recognized that the tape would have been Rosario material and the prosecution conceded that point, as well as the fact that an adverse inference charge would be appropriate. In light of defense counsel's response to the absence of the tape, appellate counsel had no basis to argue that his actions constituted ineffective assistance.
See People v. Rosario, 9 N.Y.2d 286 (1961) (defense is entitled to statements of witnesses the prosecution intends to call at trial, if the statements are in the possession of the prosecution and relate to the subject matter of witnesses' testimony).
See Tr. at 212-13.
Davis also claims that trial counsel should have objected to and moved to suppress a ballistics report request form because it was not filled out by the arresting officer. However, defense counsel cross-examined arresting officer Locayo on this point. In addition, the officer who conducted the actual ballistics testing was a witness at trial and available for cross-examination. It is unclear how appellate counsel would have shown that trial counsel's failure to object to the request form fell below the New York standard of meaningful representation or prejudiced Davis' case in any way.
See id. at 389-96.
See id. at 423-25.
Similarly, appellate counsel had no basis to argue that trial counsel was ineffective for failing to object to the judge's decision not to exclude a juror, since after in camera questioning by the judge there was no evidence that the juror had made any misrepresentations during voir dire. Further, there was no basis for trial counsel to have claimed that she was "grossly unqualified" to serve on the jury.
See id. at 739-47. An Assistant District Attorney in the courtroom had recognized the juror from a panel for another case where she was not selected to serve, and noted that on that panel she had disclosed that she was acquainted with the defense attorney on that case. Because her acquaintance with that defense attorney and the criminal justice system were attenuated, however, she had not lied on voir dire in response to questions about her own, family members' or close friends' contacts with the criminal justice system. See id.
A juror is grossly unqualified when "`it becomes obvious that a particular juror possesses a state of mind that would prevent the rendering of an impartial verdict.'" People v. Buford, 69 N.Y.2d 290, 298 (1987) (quoting People v. West, 92 A.D.2d 620, 622 (3d Dep't 1983) (Mahoney, P.J., dissenting)).
Finally, although the jury's note asking whether inadequate legal representation was relevant to their decision is troubling, nothing specific in the record supports a constitutional claim of inadequate assistance of counsel. In response to the note, the court instructed the jury that it was the court's duty to make sure that the prosecution stays "within the bounds of appropriate advocacy" and "to assure the defense counsel provides effective representation," and stated that he believed both standards were met in this case. Defense counsel and prosecution conferred with the court regarding this instruction, and defense counsel was under no duty to request a mistrial or otherwise object on the basis of the jury note once the court had instructed the jury. Again, this final objection to trial counsel's performance could not have been a basis for arguing ineffective assistance of trial counsel on appeal.
Tr. at 985-86.
Because appellate counsel, in her discretion, raised the claim she believed most likely to succeed and in doing so did not ignore stronger claims, her performance did not fall below an objective standard of reasonableness. Nor can Davis show, based on the weakness of his trial counsel claims, that had appellate counsel raised this issue the outcome of his appeal would have been different. Therefore appellate counsel's assistance was constitutionally adequate under Strickland, and the Appellate Division's denial of the coram nobis motion was not contrary to nor an unreasonable application of Supreme Court precedent.
D. Certificate of Appealability
The district court may grant a certificate of appealability, allowing a habeas petitioner to appeal the denial of his petition, with respect to any of petitioner's claims only if petitioner makes a substantial showing of the denial of a constitutional right. A substantial showing requires only that a petitioner demonstrate "reasonable jurists could debate whether . . . the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Because Davis has not made such a showing here, I decline to issue a certificate of appealability. However, Davis may seek a certificate of appealability from the Court of Appeals for the Second Circuit.
See 28 U.S.C. § 2253(c)(2). See also Miller-El v. Cockrell, 537 U.S. 322 (2003).
Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (quotation marks and citation omitted)).
V. CONCLUSION
For the above reasons, Davis' petition for a writ of habeas corpus is denied. The Clerk of the Court is directed to close this motion and this case.
SO ORDERED.