Opinion
01 Civ. 2173 (SAS).
August 2, 2001.
OPINION AND ORDER
Pro se petitioner Sean DeJesus seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his state court conviction for Murder in the Second Degree. DeJesus is currently incarcerated at Green Haven Correctional Facility, Stormville, New York, serving an indeterminate term of imprisonment of twenty-five years to life.
DeJesus asserts three grounds for habeas relief: 1) the conviction was against the weight of the evidence; 2) prosecutorial misconduct resulted in the jury's exposure to inadmissible, prejudicial evidence; and 3) ineffective assistance of appellate counsel. For the reasons set forth below, the petition is denied.
I. BACKGROUND
A. Factual Background
On September 12, 1993, William Carillo and his common law wife, Elaina Chiasson, were in bed together in their apartment. See Hearing and Trial Transcript ("Tr.") at 112. At approximately 8:00 a.m., Chiasson woke to a commotion and discovered that Carillo had been stabbed. See id. at 112, 119-20. Chiasson looked up and saw DeJesus with a bloody knife in his hand. See id. Although there were two other males in the apartment along with DeJesus, Chiasson did not know them. See id. at 146. Chiasson called an ambulance for Carillo, but did not call the police because DeJesus threatened to kill Chiasson and her family if she did. See id. at 112-13. The police arrived shortly thereafter. See id. at 113.
No evidence was introduced at trial to identify either of these individuals.
Chiasson described these events to Detective Rosa Alvarez. See id. However, it was not until a subsequent interview with Detective Alvarez that Chiasson identified DeJesus as the man who killed Carillo. See id. at 228. On February 23, 1994, Chiasson positively identified DeJesus in a police lineup. See id. at 130.
When Detective Alvarez initially asked Chiasson whether she knew the individual that stabbed her husband, she responded that she did not. See Tr. at 165.
B. Procedural Background
DeJesus was indicted on March 11, 1994 for Murder in the Second Degree, Manslaughter in the First Degree, Criminal Possession of a Weapon in the Third Degree, and Criminal Possession of a Weapon in the Fourth Degree. See 5/10/01 Affidavit of Nancy D. Killian, Assistant District Attorney, in Opposition ("Killian. Aff.") ¶ 4.
On January 2, 1996, DeJesus filed a motion to dismiss the indictment pursuant to New York Criminal Procedure Law ("C.P.L.") § 30.20 and the Sixth Amendment of the United States Constitution, claiming a violation of his right to a speedy trial. See id. ¶ 5. The court initially responded on February 13, 1996 "to the extent of directing the People to take appropriate measures to become ready by [March 26, 1996]" and directing the People to "inform the Court and the Defense as to the specific nature of past and current efforts to locate the witness(es)."People v. DeJesus, Ind. No. 1542/94 (Sup.Ct. N.Y. Co.), Ex. 4 to Killian Aff., at 1. A July 12, 1996 Order ultimately denied the motion because "the People have produced the witness before this court, and the witness has assured the court of her willingness to testify." Id., Ex. 5 to Killian Aff., at 1.
Section 30.20 states: "After a criminal action is commenced, the defendant is entitled to a speedy trial." C.P.L. § 30.20(1).
The trial began on February 3, 1997. See Tr. at 1. Chiasson testified that she often saw DeJesus "[i]n the next building, he used to sell drugs there." Tr. at 155. Immediately after this statement, the court gave the following curative instruction: "All right, the jury will disregard that. That's stricken. . . . It has nothing to do with this case." Id.
DeJesus subsequently moved for a mistrial based upon Chiasson's testimony. See id. at 134. The court denied the motion in light of the its curative instruction. See id. at 137, 139.
DeJesus was convicted on February 7, 1997, see id. at 403, and filed a timely notice of appeal on February 28, 1997. See Notice of Appeal, Ex. 6 of Killian Aff., at 1. In his appeal, DeJesus raised the following claims:
1) Mr. DeJesus' conviction for Second Degree Murder was against the weight of the evidence where the physical evidence not only failed to link Mr. DeJesus to the crime, but, in fact, suggested that he was not the perpetrator, and the only witness who implicated Mr. DeJesus in the stabbing was a self-proclaimed ex-prostitute and recovering crack addict who admitted to lying to both the police and the District Attorney's office, and whose testimony at trial was riddled with inconsistencies.
2) Mr. DeJesus was deprived of a fair trial when the prosecution violated its own guarantee that it would not introduce the irrelevant and critically prejudicial testimony that the key prosecution witness purportedly knew Mr. DeJesus as a drug dealer.
Killian Aff. ¶ 13. On April 27, 1999, the Appellate Division, First Department, unanimously affirmed DeJesus' conviction. See People v. DeJesus, 690 N.Y.S.2d 178 (1st Dep't 1999).
DeJesus applied for leave to appeal to the New York Court of Appeals, contending that the Appellate Division wrongly denied his second claim concerning uncharged bad acts. See Killian Aff. ¶ 15. No reference was made to DeJesus' "weight of the evidence" claim. See id. On August 17, 1999, leave to appeal was denied. See People v. DeJesus, 93 N.Y.2d 1017 (1999).
On March 30, 1998, DeJesus, acting pro se, moved to vacate his conviction and to set aside his sentence pursuant to C.P.L. §§ 440.10 and 440.20 on the ground that the judgment was "obtained in violation of [his] rights to the United States Constitution [and] the Constitution of this State" through a deprivation of his C.P.L. § 30.30 right to a speedy trial. Killian Aff. ¶ 10. On June 22, 1998, DeJesus withdrew this petition. See id. ¶ 11.
Section 30.30 mandates that the people be ready for trial within six months of the commencement of a criminal action where the defendant is accused of at least one felony. See C.P.L. § 30.30(1)(a). This provision does not apply, however, where a defendant is accused of manslaughter or murder. SeeC.P.L. § 30.30(3)(a).
On January 19, 2000, DeJesus, acting pro se, moved for a Writ of Error Coram Nobis, claiming the denial of effective assistance of appellate counsel. See id. ¶ 16. This claim was based solely on appellate counsel's failure to address the trial court's denial of petitioner's motion to dismiss the indictment on speedy trial grounds. See id. On September 28, 2000, the Appellate Division, First Department, denied this motion. See id. ¶ 17.
On January 25, 2001, DeJesus filed the instant habeas petition asserting the following claims:
1) Mr. DeJesus' conviction for Second Degree Murder was against the weight of the evidence where the prosecution had no physical evidence linking Mr. DeJesus to the crime, and the only witness willing to implicate Mr. DeJesus in the stabbing was a self-proclaimed ex-prostitute and recovering crack addict who admitted to lying to both the police and the District Attorney's office and whose testimony at trial was riddled with inconsistencies ("Claim I").
2) Mr. DeJesus was deprived of a fair trial when the prosecutor violated its own guarantee that it would not introduce the irrelevant and critically prejudicial bad acts testimony that the key prosecution witness purportedly knew Mr. DeJesus as a drug dealer ("Claim II").
3) Petitioner was denied effective assistance of counsel on his appeal of right in direct violation of his State and Federal Constitutional rights. N.Y. Const., Art. I, § 6; VI and XIV Amends. U.S. Const. ("Claim III").
Petition for Writ of Habeas Corpus at 5-6.
II. LEGAL STANDARD
DeJesus' petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA created a new standard of review for federal courts to apply to habeas corpus petitions. See Williams v. Taylor, 529 U.S. 362, 404-14 (2000). The relevant standard now states:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C. § 2254(d) ("section 2254").
A state court decision is "contrary to" established federal law if the state court either "applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Williams, 529 U.S. at 405-06. A state court decision will be an "unreasonable application of" clearly established Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. A state court's decision is not an "unreasonable application" of federal law if the state court's application of federal law was merely "erroneous" or "incorrect." Id. at 411. Instead, a state court's application of a federal rule must be "objectively unreasonable" in order to justify habeas relief under section 2254. Id. at 409; see also Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000).
III. DISCUSSION
A. Exhaustion
"[B]efore a federal court may consider the merits of [a habeas corpus] petition", the petitioner must first demonstrate that he has exhausted available state court remedies. Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). In order to show exhaustion, the petitioner must have "fairly presented" the federal constitutional claims to the highest court of the state. Jones v. Vacco, 126 F.3d 408, 413 (2d Cir. 1997). Not only must the legal claim presented to the state court be the substantial equivalent of the legal basis for habeas corpus relief, see Picard v. Connor, 404 U.S. 270, 275-76 (1971), but it must also place the state court on notice of the need to decide a federal constitutional claim. See Petrucelli v. Coombe, 735 F.2d 684, 687 (2d Cir. 1984).
DeJesus has exhausted all available state court remedies with respect to his claims. Claim I was reviewed on direct appeal but was not raised before the New York Court of Appeals. Because DeJesus has already made the one request for leave to appeal to which he was entitled, see New York Court Rules § 500.10(a), this claim is no longer subject to further consideration by the New York courts. In these circumstances, Claim I is deemed exhausted. See Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (claims deemed exhausted where it would be fruitless to require defendants to pursue their constitutional claims in state court). DeJesus raised Claim II in his direct appeal and then sought leave to appeal to the New York Court of Appeals. Claim III was raised by DeJesus in his Writ of Error Coram Nobis. Because the New York Court of Appeals does not hear appeals from denials of such writs, Claim III is no longer subject to state court review. See Levine v. Commissioner of Corr. Servs., 44 F.3d 121, 124 (2d Cir. 1995); see also Holmes v. Bartlett, 810 F. Supp. 550, 554 (S.D.N.Y. 1993).
B. Claim I Is Procedurally Barred
"[A] defendant has procedurally defaulted a claim by failing to raise it on direct review." Bousley v. United States, 523 U.S. 614, 622 (1998). A defendant must identify the issues that he seeks to appeal to the New York Court of Appeals in order to preserve those claims for habeas review. See Jordan v. Lefevre, 206 F.3d 196, 198-99 (2d Cir. 2000). In his letter for leave to appeal, DeJesus only raised Claim II.See 6/2/99 Letter from Catharine Easterly, attorney with the Office of the Appellate Defender, to Honorable Judith S. Kaye, Chief Judge, New York Court of Appeals ("Appeal Letter"), Ex. 15 to Killian Aff., at 1 ("This case presents an issue that requires further clarification from the Court of Appeals — namely, under what circumstances can a curative instruction cure prejudice to a defendant from improperly admitted bad acts testimony."). A defendant cannot satisfy his burden of notifying the New York Court of Appeals of an issue by simply enclosing the Appellate Division briefs in which such issue was raised. See Grey, 933 F.2d at 120; see also Thebner v. Miller, 788 F. Supp. 714, 717 (E.D.N.Y. 1992). Therefore, DeJesus has procedurally defaulted on Claim I. See Bossett, 41 F.3d at 829 (the same procedural defaults that prevented further recourse to the state courts also 9 prevented the federal court from addressing the merits of the claims).
There is an exception to the procedural bar rule which allows a federal court to "address the merits of a claim that was procedurally defaulted in state court only upon a showing of cause for the default and prejudice to the petitioner." Id. Cause may be demonstrated through "`a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by state officials made compliance impracticable, . . . [or that] the procedural default is the result of ineffective assistance of counsel." Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986) (alterations in original)). DeJesus has shown no such "external" cause for his procedural default. See McCleskey v. Zant, 499 U.S. 467, 493 (1991) ("[T]he cause standard requires the petitioner to show that `some objective factor external to the defense impeded counsel's efforts' to raise the claim in state court.") (quotingMurray, 477 U.S. at 488).
"[A] federal court may excuse a procedural default if `a constitutional violation has probably resulted in the conviction of one who is actually innocent.'" Lebron v. Mann, 40 F.3d 561, 564 (2d Cir. 1994) (quoting Murray v. Carrier, 477 U.S. 478, 496 (1986). Petitioner does not allege actual innocence.
Although ineffective assistance of counsel may constitute cause, see, e.g., Edwards v. Carpenter, 529 U.S. 446, 451 (2000), DeJesus only challenges his appellate counsel's failure to appeal the denial of his speedy trial claims. In order to constitute cause, the ineffective assistance of counsel must itself rise to the level of a constitutional violation. See id. Furthermore, the "exhaustion doctrine, . . . generally requires that a claim of ineffective assistance be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default." Murray, 477 U.S. at 488-89. Here, petitioner's only claim on his Writ of Error Coram Nobis was that his appellate counsel was ineffective because she failed to challenge the trial court's denial of the motion to dismiss based on a failure to provide a speedy trial. See supra Part I.B. Thus, DeJesus has not shown cause for his Claim I procedural default because: (1) a claim of ineffectiveness with regard to Claim I was never presented to the state courts; and (2) his appellate counsel's representation was not constitutionally deficient, see infra Part III.D. Claim I is therefore procedurally barred and not subject to habeas review.
C. Claim II Is Meritless
The standard of review of a claim of prosecutorial misconduct is "`the narrow one of due process, and not the broad exercise of supervisory power.'" Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) (quotingDarden v. Wainwright, 477 U.S. 168, 181 (1986)). In order to raise a cognizable federal due process claim based on prosecutorial misconduct, DeJesus must demonstrate not only the underlying misconduct, but also prejudice resulting 11 from that misconduct. See Floyd, 907 F.2d at 355 ("It is not enough . . . that the prosecutor's remarks were improper; rather, . . . `constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'") (quoting Garofolo v. Coomb, 804 F.2d 201, 206 (2d Cir. 1986)). DeJesus' Claim II fails in both of these respects.
1. There Was No Prosecutorial Misconduct
The prosecutor, John Morabito, agreed not to offer testimony that DeJesus was or had been a drug dealer. See Tr. at 135. Once Chiasson referred to DeJesus' drug-dealing during her direct testimony, DeJesus argued that the prosecutor acted inappropriately in light of his previous agreement and moved for a mistrial. The motion was denied because the court found that the witness volunteered the information which was beyond the scope of the prosecutor's question: "Where would you see him?" See id. at 115. This ruling was not contrary to or an unreasonable application of Supreme Court precedent.
Under the agreement, Morabito had a duty to instruct Chiasson not to mention DeJesus' drug-dealing while testifying. See Tr. at 135. Morabito did so but his instructions were ignored. See id.
The following portion from the trial record reveals the offending testimony and instruction:
Mr. Morabito: And where would you see him?
Chiasson: In the next building, he used to sell drugs.
Mr. Alperin: Judge, I object. The Court: All right, the jury will disregard that. That's stricken. . . . It has nothing to do with this case.
Tr. at 115. The trial court found that the witness was not responsive to the prosecutor's question. See id. at 140.
2. There Was No Prejudice
Claim II also fails on the ground that Chiasson's testimony did not result in prejudice to DeJesus. The court's immediate curative instruction as sufficient to eliminate whatever prejudice might have resulted. Because the jury is presumed to have followed this curative instruction, see Shannon v. United States, 512 U.S. 573, 585 (1994), DeJesus has not made a showing of prejudice.
D. Claim III Is Meritless
In order to succeed on Claim III, DeJesus must demonstrate that he had ineffective assistance of counsel under the standard set forth inStrickland v. Washington, 466 U.S. 668 (1984). Under Strickland, DeJesus must demonstrate that the representation was deficient and that he suffered prejudice as a result of such representation. See id. at 687 (deficiency requires a showing that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment while prejudice requires a showing that counsel's errors were serious enough to deprive the defendant of a fair trial).
1. Appellate Counsel's Representation Was Not Deficient
DeJesus argues that his appellate counsel should have appealed the trial court's denial of his speedy trial claims. According to DeJesus: 1) he was incarcerated for 24 months without a trial; 2) the delay was entirely attributable to the People; and 3) any delay of that length would likely impair a defense. See 1/19/00 DeJesus Affidavit in Support of Writ of Error Coram Nobis, Ex. 19 to Killian Aff., at 2-4.
DeJesus also asserts that "[a]ppellate counsel failed to raise a meritorious issue on appeal, which if raised would have resulted in a reversal of judgment, and that appellate counsel failed to preserve DeJesus' Federal rights on the issues raised on direct appeal as of right." See 1/19/00 DeJesus Affidavit in Support of Writ of Error Coram Nobis, Ex. 19 to Killian Aff., at 1. However, DeJesus fails to specify what these issues were. Therefore, I shall only address counsel's failure to raise the speedy trial claims.
Petitioner's claim under the speedy trial provision of C.P.L. § 30.20 would have likely failed. New York courts determine speedy trial claims on a case-by-case basis according to the five-factor test set forth in People v. Taranovich, 37 N.Y.2d 442, 444 (1975). These factors include: "1) the extent of the delay; 2) the reason for the delay; 3) the nature of the underlying charge; 4) whether or not there has been an extended period of pretrial incarceration; and 5) whether or not there is any indication that the defense was prejudiced by the delay." Id.
A claim under C.P.L § 30.30 would have been futile because this section excludes all homicides. See C.P.L. § 30.30(3)(a).
Constitutional speedy trial claims under the Sixth Amendment are analyzed using similar factors. The four factors to be considered in deciding such claims are: (1) the length of the delay; (2) the reason for the delay; (3) the defendant's assertion of his right; and (4) the prejudice to the defendant caused by the delay.See Doggett v. United States, 505 U.S. 647, 651 (1992);Barker v. Wingo, 407 U.S. 514, 530 (1972).
Here, the reason for the delay — the absence of a witness for the prosecution — was valid. See Barker, 407 U.S. at 531 ("[A] valid reason, such as a missing witness, should serve to justify appropriate delay."); People v. Davis, 602 N.Y.S.2d 363, 363 (1st Dep't 1993) (defendant's right to a speedy trial not violated when the "period of the delay was extensive, but no significant portion of the delay, the vast majority of which was attributable to the absence of the prosecutor's witness, was unjustified"). Moreover, the serious nature of the charges further justifies the length of time taken by the prosecution to construct its case. Additionally, although initially incarcerated, petitioner was eventually released on bail and was at liberty at the time of trial. See 8/18/98 Letter from Catharine Easterly to DeJesus ("Client Letter"), Ex. 10 of Killian Aff., at 2. Finally, there is no indication that petitioner's defense suffered as a result of the delay or that petitioner suffered any other prejudice as a result of the delay.
In sum, petitioner does not satisfy any of the factors relevant to a speedy trial claim under either C.P.L. § 30.20 or the Sixth Amendment. This conclusion was reached by petitioner's appellate counsel who, after discussions with her supervisor, determined that petitioner's speedy trial claims were without merit. See id. Counsel therefore declined to raise these claims on appeal. See id.
Appellate counsel recognized that the three-year delay between the time of indictment and the trial was long. See Client Letter at 2. However, counsel also realized that the serious nature of the charges, the fact that DeJesus was eventually released on bail, and the lack of any resulting prejudice would undermine petitioner's speedy trial claims. See id.
A lawyer's failure to raise a claim on appeal may only be deemed ineffective if the claim has some merit. See Leaks v. United States, 841 F. Supp. 536, 541 (S.D.N.Y. 1994) ("An attorney's decision not to raise meritless claims on appeal can never rise to the level of ineffective assistance of counsel."), aff'd, 47 F.3d 1157 (2d Cir. 1995). Thus, appellate counsel's decision to forego a non-meritorious claim was not ineffective especially when counsel made the strategic choice to pursue other, more substantial claims. See Strickland, 466 U.S. at 681 ("If counsel conducts such substantial investigations, the strategic choices made as a result `will seldom if ever' be found wanting."). See, e.g., Rosario v. Walker, No. 97 Civ. 3185, 2000 WL 1341395, at *2 (S.D.N.Y. Sept. 15, 2000) (counsel's decision to not re-open a pre-trial Wade hearing was the "type of strategic decision by counsel [that] falls within the ambit of the `reasonable professional judgment' that the Supreme Court, in Strickland v. Washington, states is not to be second-guessed by reviewing habeas courts.");Franza v. Stinson, 58 F. Supp. 124, 151 (S.D.N.Y. 1999) (counsel's decision to not request a charge on a lesser included offense was a strategic decision within the realm of lawyer competence). DeJesus has therefore failed to make a showing of deficient representation.
2. There Was No Prejudice
DeJesus cannot make the showing of prejudice required to demonstrate ineffective assistance of counsel under Strickland. As discussed earlier, the speedy trial claims lacked merit. Therefore, no prejudice resulted from counsel's failure to raise them on appeal.
IV. CONCLUSION
For the foregoing reasons, DeJesus' petition is denied. Because DeJesus has failed to make a substantial showing that he was denied a constitutional right, this Court will not issue a certificate of appealability. See Lucidore v. New York State Div. of Parole, 209 F.3d 107, 112 (2d Cir.) (holding that substantial showing exists where (i) the issues involved in the case are debatable among jurists of reason, (ii) a court could resolve the issues in a different manner, or (iii) the questions are adequate to deserve encouragement to proceed further),cert. denied, 531 U.S. 873 (2000). The Clerk of the Court is directed to close this case.