Opinion
00 Civ. 7926 (RJH)(THK).
September 1, 2006
MEMORANDUM OPINION AND ORDER
Petitioner brings this habeas petition pursuant to 28 U.S.C. § 2254 challenging his state court conviction. On November 21, 1996, following a jury trial in New York Supreme Court, Bronx County, petitioner was convicted of Murder in the Second Degree in violation of N.Y. Penal Law § 125.25 (McKinney 2004), Attempted Murder in the Second Degree in violation of N.Y. Penal Law §§ 111.0, 25.25[1], Kidnapping in the First Degree in violation of N.Y. Penal Law § 135.25, Kidnapping in the Second Degree in violation of N.Y. Penal Law § 135.20, Sodomy in the First Degree in violation of N.Y. Penal Law § 130.50, and Criminal Use of a Firearm in the First Degree in violation of N.Y. Penal Law § 265.09. For these offenses, DeJesus was sentenced to an aggregate term of thirty-six years and four months to life imprisonment.
DeJesus's petition claims that (1) his right to present a defense and his due process rights were violated by the trial court's jury instructions and restrictions placed on his trial counsel's summation, (2) his sentence was excessive, and (3) his appellate counsel was ineffective.
On September 1, 2005, Magistrate Judge Theodore H. Katz issued a Report and Recommendation ("Report") recommending that the petition be dismissed in its entirety with prejudice. The Report extensively outlines the factual background of this case. Accordingly, and consistent with the purpose of the Federal Magistrates Act to "promote efficiency of the judiciary," the Court will assume familiarity with the Report rather than compose what would be a largely redundant background section. The Report is attached in its entirety at the end of this opinion for ease of reference. Petitioner filed no objections to the Report.
DISCUSSION
A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motion. See 28 U.S.C. § 636(b)(1). Within ten (10) days of service of the recommendation, any party may file written objections to the magistrate's report. Id. If no objections are filed, or where objections are "merely perfunctory responses," argued in an attempt to "engage the district court in a rehashing of the same arguments set forth in the original petition," reviewing courts should review a report and recommendation for clear error. Vega v. Artuz, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002); accord Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). On the other hand, where objections to a report are "specific and . . . address only those portions of the proposed findings to which the party objects," district courts should conduct a de novo review of the issues raised by the objections. Camardo v. Gen. Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 381-82 (W.D.N.Y. 1992).
Because petitioner filed no objections to the Report, this Court reviewed the Report for clear error. Finding no such error in the Magistrate Judge's thorough analysis, this Court adopts the Report in its entirety and dismisses with prejudice the claims raised in petitioner's original petition.
CONCLUSION
The Report and Recommendation of Magistrate Theodore H. Katz, dated September 1, 2005, is hereby adopted in its entirety, and the petition of Cesar DeJesus for a writ of habeas corpus is dismissed with prejudice. Any appeal from this Order would not be taken in good faith under 28 U.S.C. § 1915(a)(3). See Coppedge v. United States, 369 U.S. 438, 445-46 (1962). As petitioner has not made a substantial showing of the denial of a federal right, a certificate of appealability will not issue. 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000).
The Clerk of the Court is directed to close this case.
SO ORDERED.
REPORT AND RECOMMENDATION
This habeas corpus proceeding was referred to this Court for a Report and Recommendation, pursuant to 28 U.S.C. § 636(b) (1) (B) and (C) and Rule 72.1(d) of the Local Civil Rules of the Southern District of New York.Petitioner Cesar DeJesus ("Petitioner") was convicted after a jury trial in New York Supreme Court, New York County, of Murder in the Second Degree (N.Y. Penal Law § 125.25(1)), Attempted Murder in the Second Degree (N.Y. Penal Law §§ 111.0, 25.25(1)), Kidnapping in the First Degree (N.Y. Penal Law § 135.25(3)), Kidnapping in the Second Degree (N.Y. Penal Law § 135.20), Sodomy in the First Degree (N.Y. Penal Law § 130.50(1)), and Criminal Use of a Firearm in the First Degree (N.Y. Penal Law § 265.09(1)). Petitioner was sentenced to an aggregate prison term totaling thirty-six years and four months to life imprisonment.
Petitioner, currently incarcerated at Auburn Correctional Facility, seeks habeas relief pursuant to 28 U.S.C. § 2254. In his original Petition, Petitioner claimed that the trial court's jury instructions, in addition to restrictions placed on his trial counsel's summation, violated his due process rights and his right to present a defense. Petitioner also claimed that his sentence was excessive. Petitioner later amended his Petition, adding ineffective assistance of appellate counsel as a third ground upon which habeas relief is requested.
Respondent contends that Petitioner's jury instruction and summation claims are procedurally barred, and that Petitioner's excessive sentence claim is not cognizable on federal habeas review. Respondent also argues that Petitioner's ineffective assistance of counsel claim is without merit.
This Court agrees, and for the reasons that follow, recommends that the Petition be dismissed with prejudice.
BACKGROUND
I. The Trial
The People adduced the following evidence at trial. DW testified that on the morning of July 22, 1995, she was standing on the corner of 187th Street and St. Nicholas Avenue attempting to purchase illegal narcotics. (See Trial Transcript, dated May 9, 2000 ("Tr."), at 255-56.) A man named Frank Camilo ("Camilo") then approached her and asked where he could find MM. (See id. at 257-58.) DW told Camilo that she did not know what he was talking about. (See id.) MM then turned down the block and Camilo immediately stopped her. (See id. at 258.)
New York Civil Rights Law § 50-b provides that the identities of the victims of sex offenses shall be kept confidential. Accordingly, the two victims in this case are referred to by their initials throughout this opinion.
DW originally met MM "in a crack house" in the summer of 1994. (Tr. at 251.) The two woman shared an apartment briefly, but were not living together as of July, 1995. (See id. at 258.)
Camilo called up to a nearby building, shouting "Rocky." (See id.) Petitioner then came downstairs, carrying a pistol. (See id. at 260.) Petitioner asked MM about the location of drugs he believed she had stolen. (See id. at 261.) Petitioner then placed his arm on MM's shoulder and instructed the two women to start walking. (See id.)
The People later adduced testimony establishing that "Rocky" was Petitioner's common nickname. (See Tr. at 178.)
DW testified that a third man, with whom she was not familiar, originally accompanied Petitioner and Camilo, but left the group during the course of their walk. (See id. at 262.) However, DW stated that the third man, before leaving, instructed Camilo to allow her to leave. (See id.) Camilo, according to DW, responded, "No you're not going anywhere. I have to know what happened to my stuff." (Id. at 262.)
Camilo and Petitioner led DW and MM into a park at 190th Street and Amsterdam Avenue. (See id. at 263.) Petitioner walked away with MM, and DW remained with Camilo. (See id.) Camilo told DW that drugs were missing and they suspected MM was responsible. (See id. at 258.) Camilo explained that MM had a reputation for stealing drugs and had been previously caught stealing from the apartment where Camilo's drugs were stored. (See id. at 263-64.)
Camilo and DW then rejoined MM and Petitioner. (See id. at 264.) DW testified that MM was now naked and had her hands tied behind her back. (See id.) Camilo then instructed DW to undress. (See id. at 264-65.) DW complied and placed her clothes in a bag MM had been carrying. (See id.) Camilo and Petitioner continued to question MM about the location of the missing drugs and MM repeatedly denied responsibility for the theft. (See id.) Petitioner and Camilo then threw away the bag containing the girls' clothing and forced the girls to walk into a different area of the park. (See id.)
DW testified that she attempted to persuade Camilo to release her and MM. (See id at 265.) Camilo refused and instructed DW to watch MM as she performed oral sex on Petitioner. (See id.) DW testified that Petitioner then said to Camilo, "What are we going to do." (Id. at 266.) Camilo responded, "Well, let's get rid of them. Let's kill them, whatever." (Id.) According to DW, Petitioner also made a statement to that effect. (See id.)
Camilo then shot DW. (See id.) The bullet struck her left arm and chest. (See id.) DW heard another shot fired before losing consciousness. (See id. at 267.)
After regaining consciousness, DW made her way to MM, who was not moving. (See id. at 268.) DW then exited the park on 184th Street, where she found a security guard from Yeshiva University. (See id.) The security guard immediately contacted the police and called for an ambulance. (See id. at 270.)
Officer Alejandro Ruiz ("Ruiz") testified that on the night of July 22, 1995, he was on patrol in the 34th Precinct. (See id. at 93-94). Officer Ruiz was directed to High Bridge Park where he discovered DW sitting on the park steps. (See id. at 95.) After conversing with DW, Ruiz entered the park and discovered MM's body. (See id. at 96.) MM was naked, wearing only a necklace of rosary beads. (See id.) Two ambulances arrived shortly thereafter, and MM was officially pronounced dead by paramedic James Schrang. (See id. at 121.) DW survived the shooting, but sustained serious injury to her diaphragm, kidney, liver, and stomach. (See id. at 373, 375.)
The prosecutor also elicited testimony from Detective Thomas White ("White") and Investigator Randy Mashas ("Mashas"). White testified that he coordinated the search for physical evidence, sketched the area in which the shooting took place, and took photographs. (See id. at 35.) He also testified that the police searched for a gun and for shell casings, but did not recover either. (See id. at 57-58.) Mashas testified there was a gunshot wound to the left temporal area of MM's head. (See id. at 82.) He also testified that in his opinion, the wound suggested that the gun was no more than a foot from MM's head when fired. (See id. at 83.)
Officer Mickey Fontanez ("Fontanez") testified that in the days following the shooting, he was informed of the facts of the case by Detective Matthew Fallon. Officer Fontanez regularly patrolled the area in which the shooting took place and therefore was aware that "Rocky" was Petitioner's common nickname. (See id. at 178.) Fontanez also knew that Petitioner frequently "hung out" on Audubon Avenue between 185th and 186th Streets. (Id. at 181.) After learning of the shooting, Fontanez passed this location several times during his patrols, but did not see Petitioner. (See id.) Fontanez believed this was unusual, because he had seen Petitioner in that location "every day" prior to the shooting. (Id. at 182.)
Fontanez saw Petitioner on Audubon Avenue at approximately 1:00 p.m. on August 1, 1995. (See id. at 185.) He then entered a nearby building, radioed his partner, and waited for the arrival of backup. (See id.) Fontanez then approached the group of men with whom Petitioner was standing, and instructed Petitioner to place his hands behind his back. (See id. at 187.) Petitioner complied, and was handcuffed by Fontanez. Fontanez then read Petitioner his Miranda rights in Spanish. (See id. at 188.) Petitioner acknowledged that he understood his rights and did not request an attorney. (See id. at 195.)
Fontanez then placed Petitioner in a police car and accompanied him to the local precinct. (See id.) Petitioner met with Detective Tony Imperato ("Imperato"), and Officer Fontanez acted as an interpreter. (See id. at 199.) Imperato informed Petitioner that he was a suspect in a homicide and read Petitioner his Miranda rights, in Spanish, a second time. (See id. at 199-200.) Petitioner acknowledged that he was aware of his rights and offered a statement which Imperato reduced to writing. (See id. at 201, 207.)
Petitioner stated that at approximately 6:00 a.m. on July 22, 1995, he saw Camilo with two females on Audubon Avenue. (See Brief of Defendant-Appellant ("Pet'r App. Br.") at 18, Ex. A to Respondent's Appendix ("Resp't Appx."); Brief of Respondent ("Resp't App. Br.") at 12-13, Ex. B to Resp't Appx.) He recognized one of the women, because she had previously attempted to steal from Camilo's apartment. (See Pet'r App. Br. at 18; Resp't App. Br. at 13.) Petitioner claimed that Camilo instructed him not to follow, but that he did so anyway and walked a short distance behind the group. (See Pet'r App. Br. at 19; Resp't App. Br. at 13.) Petitioner then stated that after arriving at the park, Camilo again instructed him to leave, and he complied and exited the park. (See id.)
Although Petitioner's statements were not read into the record at trial, they were entered into evidence as People's Exhibits 6, 7, and 8. This Court has reviewed the state appellate briefs submitted by both parties, which confirm that the content of Petitioner's statements is not in dispute.
Petitioner later offered a second statement, which Detective Imperato also reduced to writing. Petitioner now claimed that at 6:00 a.m. on July 22, he saw Camilo and two women on Audubon Avenue. Camilo informed him that he had caught the two women sneaking into his apartment. Petitioner then accompanied the group into the park, remaining with one woman as Camilo walked with the other. (See Pet'r App. Br. at 19; Resp't. App. Br. at 13.) Petitioner stated that he instructed the woman he was with to undress, assured her that nothing would happen, and asked her to perform oral sex. (See id.) He stated that while receiving oral sex, he heard a gunshot from Camilo's direction and immediately ran from the park. After running about thirty feet, Petitioner claimed he heard a second shot. (See Pet'r App. Br. at 20; Resp't App. Br. at 14.) He further stated that he spoke with Camilo several days later, and Camilo told him that the two women were regularly breaking into his apartment and that he was forced to spend a lot of money in necessary repairs. (See id.)
Petitioner later offered a third statement, which was videotaped. (See id.) Petitioner's videotaped description of the events of July 22 was consistent with his second statement. However, Petitioner claimed he was not aware Camilo was carrying a gun, nor did he see a gun in Camilo's possession at any point during their walk. (See id.)
The jury returned a verdict finding Petitioner guilty of all charges.
II. Post-Trial Proceedings
Petitioner, represented by counsel, filed an appeal with the Appellate Division, First Department. In his appeal, Petitioner claimed that the trial court's jury instructions, and restrictions placed on defense counsel's summation, which limited any use and consideration of Officer Fontanez's invocation of his Fifth Amendment rights with respect to his burglary arrest almost one year after the events in which Petitioner was involved, violated Petitioner's due process rights and his right to present a defense. (See Pet'r App. Br. at 29.) Petitioner also claimed that his sentence was excessive in light of his age and lack of a criminal history. (See id. at 46.) On May 13, 1999, the Appellate Division unanimously affirmed Petitioner's conviction. (See People v. DeJesus, 261 A.D.2d 196, 691 N.Y.S.2d 29 (1st Dep't 1999). The court noted that it was within the trial judge's discretion to instruct the jury not to draw any inferences from Officer Fontanez's invocation of the Fifth Amendment with respect to his arrest. See id. at 197, 691 N.Y.S.2d at 30. The court also found no abuse of discretion after examining Petitioner's sentence. See id. On August 10, 1999, the New York State Court of Appeals denied Petitioner's application for leave to appeal. See People v. DeJesus, 93 N.Y.2d 1017, 697 N.Y.2d 525 (1999).
Petitioner's initial habeas Petition was filed on or about September 7, 2000. In December of 2003, Petitioner moved to stay this proceeding so that he could exhaust his state remedies with respect to certain claims which had not been raised in the Petition. The District Court (Holwell, J.) granted Petitioner's motion and instructed him that he had thirty days to present new claims to the New York courts, and once his claims became exhausted, thirty days to amend his Petition. (See Order, dated Jan. 22, 2004.)
On February 25, 2004, Petitioner, proceeding pro se, moved in the New York courts for a writ of error coram nobis, contending that he had been denied effective assistance of appellate counsel, and requesting de novo appellate review of his claims. (See Notice of Petition for Writ of Error Coram Nobis With Supporting Affidavit, Ex. G to Resp't Appx.) Specifically, Petitioner contended that his appellate counsel was ineffective because he failed to raise: (1) a sufficiency of the evidence claim; (2) a claim challenging the trial court's consideration of "untrue misinformation" during the sentencing hearing; (3) a claim challenging Petitioner's sentence on Eighth Amendment grounds; and (4) an ineffective assistance of trial counsel claim. (See id.)
The Appellate Division, First Department summarily denied the coram nobis application. See People v. DeJesus, 8 A.D.3d 1131, 780 N.Y.S. 2d 105 (1st Dep't 2004). Leave to appeal was denied on August 26, 2004. See People v. DeJesus, 3 N.Y.3d 673, 784 N.Y.S.2d 11 (2004).
Petitioner proceeded to amend his Petition in this action, adding ineffective assistance of appellate counsel as a third ground upon which habeas relief is requested. In April 2005, Petitioner filed a second motion for a stay, seeking to return to the New York courts to exhaust additional claims of ineffective assistance of appellate counsel. This Court denied the motion on May 4, 2005.
This proceeding was referred to this Court on October 8, 2004.
DISCUSSION
I. Standard of ReviewPursuant to the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"), a federal court may grant habeas relief to a state prisoner only if a state court conviction "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," 28 U.S.C. § 2254(d) (1), or if it "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)(2).
A state court decision is "contrary to" clearly established 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."Williams v. Taylor, 529 U.S. 362, 413, 120 S. Ct. 1495, 1523 (2000); accord Leslie v. Artuz, 230 F.3d 25, 32 (2d Cir. 2000); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000). The phrase, "clearly established Federal law, as determined by the Supreme Court of the United States," limits the law governing a habeas petitioner's claims to the holdings (not dicta) of the Supreme Court existing at the time of the relevant state-court decision. Williams, 529 U.S. at 412, 120 S. Ct. at 1523; accord Leslie, 230 F.3d at 32.
A state court decision is based on an "unreasonable application" of Supreme Court precedent if it correctly identifies the governing legal rule, but applies it in an unreasonable manner to the facts of a particular case.Williams, 529 U.S. at 413, 120 S. Ct. at 1523. The inquiry for a federal habeas court is not whether the state court's application of the governing law was incorrect, but rather whether it was "objectively unreasonable." See id. at 408-10, 120 S. Ct. at 1521-22; see also Aparicio v. Artuz, 269 F.3d 78, 94 (2d Cir. 2001) "[A] federal habeas court is not empowered to grant the writ just because, in its independent judgment, it would have decided the federal law question differently. The state court's application must reflect some additional increment of incorrectness such that it may be said to be unreasonable.");Lurie v. Wittner, 228 F.3d 113, 128-29 (2d Cir. 2000) (same).
Under AEDPA, "a determination of a factual issue made by a State court shall be presumed to be correct. The [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir.) ("The presumption of correctness is particularly important when reviewing the trial court's assessment of witness credibility."),cert. denied sub nom. Parsad v. Fischer, 540 U.S. 1091, 124 S. Ct. 962 (2003). A state court's findings "will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding."Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S. Ct. 1029, 1041 (2003).
II. Jury Instruction and Summation Claim
Prior to the testimony of Officer Fontanez, the prosecutor informed defense counsel of the existence of a criminal court complaint charging Officer Fontanez with Burglary in the Second Degree. Officer Fontanez was arrested thirty days earlier, but had not yet been indicted. (See Tr. at 140.) The trial court, after learning Officer Fontanez intended to invoke the Fifth Amendment if questioned about this incident, ruled that defense counsel would be able to ask one question concerning the matter in the presence of the jury. (See id. at 141.) The court did not instruct Petitioner's counsel on how to phrase the question and specifically noted that forcing the witness to invoke privilege in front of the jury was "in and of itself . . . a sufficient sanction." (Id. at 141, 143.) The trial court noted that Fontanez's invocation of the Fifth Amendment pertained to a matter collateral to Petitioner's trial (see id.), and informed defense counsel that if he elected to comment on Fontanez's invocation of his Fifth Amendment rights during summation, he would instruct the jury that it should not draw any inferences, positive or negative, from the assertion of the privilege. (See id.)
At trial, defense counsel asked Officer Fontanez, "Now, on January 20, 1995, did you and Police Officer Angel Martinez and Police Officer Sanchez go to premises 529 West 186 Street and enter an apartment illegally and steal sporting goods there?" (Id. at 236.) Officer Fontanez invoked his Fifth Amendment rights. The trial judge instructed the jury that it "should not draw any inferences positive or negative from the assertion by the witness of his constitutional rights." (Tr. at 236.) Defense counsel did not object to this instruction, and the prosecutor proceeded with redirect examination. (See id.)
Prior to the commencement of closing arguments, defense counsel requested that the trial court alter its prior jury instruction and inform the jury that it could consider Officer Fontanez's invocation of the Fifth Amendment in assessing his credibility. (See id. at 388.) The trial court denied this request and stated that it would not refer to this issue at all in its final jury charge. (See id.) Defense counsel then requested that the trial judge repeat its prior jury instruction, concerning Officer Fontanez, in its final instructions to the jury. (See id.)
During closing arguments, defense counsel reminded the jury that Fontanez invoked the Fifth Amendment during cross-examination. (See id. at 398.) The trial judge then reread the instruction previously issued with respect to this matter. (See id.) After defense counsel stated, "I submit to you this strange state of affairs," the prosecutor objected, and the trial court suggested that defense counsel "move on to something else." (See id. at 399.) Defense counsel, before leaving the subject, remarked sarcastically that Officer Fontanez was a member of "New York's Finest." (See id.)
In its final jury charge, the court advised the jury, "As I told you, you're to draw no inference with regard to [Officer] Fontanez because of his assertion of his constitutional right to decline to answer a question." (See id. at 475.) Defense counsel did not object to this instruction.
Petitioner claims that the trial court's instructions concerning Officer Fontanez's invocation of the Fifth Amendment, and the restrictions it placed upon his counsel's summation, violated his due process rights and his right to present a defense. Respondent contends that this claim is procedurally barred by New York's contemporaneous objection rule and, therefore, is not cognizable on federal habeas review. This Court agrees.
A. Procedural Bar
Federal courts cannot review decisions that "rest on an adequate and independent state procedural default unless petitioner can show both cause and prejudice or a fundamental miscarriage of justice." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000). A state procedural default is not adequate unless "it is based on a rule that is firmly established and regularly followed by the state in question." Brown v. Miller, No. 04 Civ. 9804 (LBS), 2005 WL 1773683, at *3 (S.D.N.Y. July 26, 2005) (quoting Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999)) (internal quotation marks omitted).
A federal court will not treat a claim as procedurally barred unless there is a clear, plain statement from the state court that it found a procedural default. See Coleman v. Thompson, 501 U.S. 722, 737, 111 S. Ct. 2546, 2558 (1991); Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043 (1989); Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001); Fama, 235 F.3d at 809. A federal court must apply a presumption against finding a procedural bar, and must look not to what the state court "actually might have intended but whether the state court plainly stated its intention." Galarza, 252 F.3d at 637 (quoting Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000)).
Under New York law, a question of law is preserved for appellate review only if "a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same." N.Y. Crim. Proc. Law § 470.05(2). The Second Circuit has "recognized the propriety of New York's contemporaneous objection rule, noting that if a state appellate court refuses to review the merits of a criminal defendant's claim of constitutional error because of his failure to comply with . . . a 'contemporaneous objection' rule, a federal court generally may not consider the merits of the constitutional claim on habeas corpus review." Garcia, 188 F.3d at 78-79 (quoting Peterson v. Scully, 896 F.2d 661, 663 (2d Cir. 1990)).
In denying Petitioner's appeal, the Appellate Division found, with respect to the jury instruction claim, that, "[to] the extent defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice." DeJesus, 261 A.D.2d at 197. In finding Petitioner's claim "unpreserved," the Appellate Division clearly relied on defense counsel's failure to object to the court's jury instruction and to any limitations placed on counsel's summation. There is no question as to the adequacy of its conclusion that the summation claim was not preserved, since counsel never objected to the restrictions imposed by the court. (See Tr. at 398-99.) Moreover, the first time the court instructed the jury on the issue of Fontanez's invocation of his Fifth Amendment rights, and indicated that it should not draw any inferences, positive or negative, from the assertion of his rights, defense counsel did not object. (See id. at 236.) Although, prior to summations, defense counsel did request a jury instruction which advised the jury that it could consider Fontanez's invocation of the Fifth Amendment in weighing his credibility, the court explained why it thought such an instruction was inappropriate under the circumstances presented, and defense counsel did not take issue with the court's conclusion. In fact, defense counsel requested that the court again instruct the jury, as it had done previously. (See Tr. at 388.) Because no objection was registered to the instruction, no less an objection based on constitutional grounds, the Appellate Division properly concluded that the claim was unpreserved.
The Appellate Division did address the merits of what it perceived to be a purely discretionary state law matter, concluding that the disputed jury instruction did not constitute an abuse of the trial court's discretion. See DeJesus, 261 A.D.2d at 197, 691 N.Y.S.2d at 30 (citing People v. Siegel, 87 N.Y.2d 536, 544-45, 640 N.Y.S.2d 831, 834-45 (1995); People v. Thomas, 51 N.Y.2d 466, 472, 434 N.Y.S.2d 941, 944 (1980)).
In light of the Appellate Division's reliance on a state procedural default, this Court is barred from reviewing Petitioner's first claim unless Petitioner "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 claim will result in a fundamental miscarriage of justice."Coleman, 501 U.S. at 750, 111 S. Ct. at 2565; see also Dretke v. Haley, 541 U.S. 386, 393, 124 S. Ct. 1847, 1852 (2004); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1999). Cause for is procedural default "ordinarily requires a showing of some external impediment preventing counsel from constructing or raising the claim," McGann v. Kelly, 891 F. Supp. 128, 135 (S.D.N.Y. 1995), such as (1) a showing that the defendant was represented by counsel who was constitutionally ineffective; (2) a showing that the factual or legal basis for a claim was not reasonably available at the time of the default; or (3) interference by state officials that made compliance with the procedural mechanism impracticable. See Murray v. Carrier, 477 U.S. 478, 496, 106 S. Ct. 2639, 2649 (1986).
Petitioner does not assert a cause for the procedural default of his jury instruction and summation claim. Petitioner does raise a separate claim in which he argues his appellate counsel was ineffective for failing to present an ineffective assistance of trial counsel claim to the Appellate Division. However, it is not appellate counsel who could have preserved Petitioner's claim at trial, and Petitioner never challenged the effectiveness of his trial counsel in the New York courts. Because the claim of ineffective assistance of trial counsel has not been exhausted, it cannot serve as cause for the default.See Edwards v. Carpenter, 529 U.S. 446, 451-52, 120 S. Ct. 1587, 1591-92 (2000); Murray, 477 U.S. at 488-89, 106 S. Ct. at 2645-46; Reyes v. Keane, 118 F.3d 136, 140 (2d Cir. 1997);Richter v. Artuz, 77 F. Supp. 2d 385, 395 (S.D.N.Y. 1998);Zelaya v. Mantello, No. 00 Civ. 0853 (MBM), 2003 WL 22097510 at *5 (S.D.N.Y Sept. 10, 2003). Since Petitioner has failed to demonstrate cause for the procedural default, the Court need not address whether "actual prejudice" can be demonstrated. See McCleskey v. Zant, 499 U.S. 467, 502, 111 S. Ct. 1454, 1474 (1991) (citing Murray, 477 U.S. at 494, 106 S. Ct. at 2649);Tirado v. Walsh, 168 F. Supp. 2d 162, 169 (S.D.N.Y. 2001).
In any event, tt is apparent that Petitioner could not demonstrate prejudice, since the jury instruction he claims he was entitled to relates to a totally collateral issue that would not undermine the very substantial evidence of Petitioner's guilt.
Although an exception to the cause and prejudice requirement may be made if necessary to avoid a fundamental miscarriage of justice, see Murray, 477 U.S. at 495-96, 106 S. Ct. at 2649, there is nothing in the record to suggest that such exceptional circumstances can be demonstrated here. A fundamental miscarriage of justice occurs only in the extraordinary case "where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir. 2002) (quoting Murray, 477 U.S. at 496, 106 S. Ct. at 2649). "To establish actual innocence, [a] petitioner must demonstrate that in light of all the evidence, it is more likely than not that no reasonable juror would have convicted him."Id. (quoting Bousley v. United States, 523 U.S. 614, 623, 118 S. Ct. 1604, 1611 (1998)) (internal quotation marks omitted).
In the present case, Petitioner has not raised a claim challenging the sufficiency of the evidence presented at trial. Moreover, any such claim would be meritless, since DW provided detailed testimony of Petitioner's involvement in the crimes of which he was convicted. See discussion infra, at 34-38. Nor has Petitioner offered any new evidence of innocence. Without offering new evidence, this Court cannot find that a miscarriage of justice occurred without "asserting that none of the jurors acted reasonably." Lucidore v. N.Y. State Div. of Parole, No. 99 Civ. 2936 (AJP), 1999 WL 566362, at *8 (S.D.N.Y. Aug. 3, 1999),aff'd, 209 F.3d 107 (2d Cir. 2000); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) ("[Petitioner] presented no new evidence of his innocence and did not make the necessary showing required . . . to bypass the procedural bars.").
Accordingly, Petitioner's jury instruction and summation claims are procedurally barred and cannot serve as a basis for habeas relief. Moreover, even if consideration of these claims was not procedurally barred, the claims are meritless.
B. Merits of Jury Instruction Claim
In considering whether a state court jury instruction violated a petitioner's due process rights, a federal habeas court must limit its inquiry to "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147, 94 S. Ct. 396, 400 (1973); accord Middleton v. McNeil, 541 U.S. 433, 437, 124 S. Ct. 1830, 1832 (2004); Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482 (1991). For a petitioner to receive habeas relief on an improper jury instruction claim, "it must be established not merely that the instruction is undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment. Cupp, 414 U.S. at 146, 94 S. Ct. at 400. Further, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Id., at 146-47, 94 S. Ct. at 400; accord Middleton, 541 U.S. at 437, 124 S. Ct. at 1832.
Petitioner primarily contends that the instruction the trial court delivered was inconsistent with the New York State Pattern Criminal Jury Instructions. These instructions recommend that if a prosecution witness invokes the Fifth Amendment concerning a collateral matter, the trial judge should instruct the jury that,
The witness has a constitutional right to refuse to answer these particular questions and I have sustained his right to do so. I instruct you that no inference favorable or unfavorable to either party may be drawn by you from his refusal to answer these particular questions. However, since the questions relate solely to his own credibility as a witness, you may take into consideration his refusal to answer such questions in determining, as you may with all witnesses, to what extent you believe his testimony in view of his refusal to answer these questions.
1 Crim. Jury I [NY] § 7.14 (1979).
Petitioner correctly observes the discrepancy between the challenged instruction and the state model. However, deviation from a model state jury instruction does not, in and of itself, violate a defendant's due process rights. See Estelle, 502 U.S. at 72, 112 S. Ct. at 482 ("Federal habeas courts therefore do not grant relief, as might a state appellate court, simply because the instruction may have been deficient in comparison to the [State] model.").
Returning to the constitutional standard, there is no doubt that the disputed jury instruction did not infect the entire trial with unfairness. Officer Fontanez's arrest, one year after the incident for which Petitioner was tried, was totally collateral to the issues and evidence in Petitioner's trial.See United States v. Brooks, 82 F.3d 50, 54 (2d Cir. 1996) ("We have held that a witness's testimony about other unrelated crimes may be collateral."). At most, the arrest could have been considered in assessing Fontanez's credibility, but his credibility was also a fairly peripheral issue. The most significant aspect of Officer Fontanez's testimony was his description of Petitioner's statements while in police custody. Petitioner never disputed the content of these statements, nor did he contend that they were not given voluntarily. The only other testimony Fontanez gave concerned his familiarity with the area where Petitioner "hung out," and Petitioner's absence from that area following the shooting. Even if the jury totally disbelieved Fontanez, it would have had little impact on the outcome of the Petitioner's trial, since it was DW's testimony which directly implicated Petitioner in the crimes for which he was convicted.
Thus, even if the trial court's treatment of Officer Fontanez's invocation of his Fifth Amendment rights was erroneous under New York law, its impact on Petitioner's trial was harmless and clearly not significant enough to satisfy the Cupp standard.
It is not clear that the instruction was erroneous, since the New York Court of Appeals has recognized the discretion afforded trial courts in addressing Fifth Amendment issues relating to collateral matters. See Siegel, 87 N.Y.2d at 544-45, 640 N.Y.S.2d at — (citing with approval authorities which support the conclusion that when the invocation of privilege relates to a collateral matter, the court may, as a remedial matter, have the witness invoke the privilege before the jury or instruct the jury to consider the testimony in light of the defendant's limited ability to cross-examine). In Petitioner's case, the Appellate Division found that the trial court's jury instruction was a proper exercise of discretion under state law.
C. Merits of Summation Claim
"The right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1046 (1973). This right to present a defense guarantees a defendant the right to present a closing argument to the jury. See Herring v. New York, 422 U.S. 853, 859, 95 S. Ct. 2550, 2554 (1975). However, it is well-recognized that "trial courts have wide latitude in limiting the scope of closing arguments." Ayuso v. Artuz, No. 99 Civ. 12015 (AGS) (JCF), 2001 WL 246437, at *7 (S.D.N.Y. Mar. 7, 2001) (citing Herring, 422 U.S. at 862).
In the instant case, the trial court allowed Petitioner's counsel to comment on Officer Fontanez's invocation of the Fifth Amendment. It also did not strike defense counsel's sarcastic remark that Officer Fontanez was "one of New York's finest". The court could have properly prohibited both statements, in light of its prior jury instruction and the discretion afforded trial courts in placing restrictions on summations. That the court instructed defense counsel to move on to a different subject, did not substantially impair counsel's ability to present a summation and was of negligible importance.
Because the minor limitation on counsel's summation did not interfere in any meaningful way with Petitioner's ability to present a defense, Petitioner has failed to demonstrate a violation of any constitutional right.
Because Petitioner's jury instruction and summation claims are procedurally barred and meritless, this Court recommends that they be dismissed with prejudice.
III. Excessive Sentence Claim
Petitioner argues that his sentence was excessive because of his age, lack of a criminal history, and ability to return to a law-abiding lifestyle. This claim does not implicate federal law, and cannot provide the basis for habeas relief.
It is well-established that no cognizable federal claim exists when a Petitioner challenges a sentence that falls within the appropriate range under state law. See Dorsey v. Irvin, 56 F.3d 425, 427 (2d Cir. 1996); White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). At the time of Petitioner's conviction, New York law provided a maximum sentence of life imprisonment for a class A-I felony, and a minimum sentence of between fifteen and twentyfive years' imprisonment. See N.Y. Penal Law § 70.00(2) (a), (3) (a) (i) (1995). Petitioner was sentenced to (1) twenty-five years to life imprisonment on his conviction for Murder in the Second Degree, and (2) twenty-five years to life imprisonment for First Degree Kidnapping. Both of those offenses were A-1 felonies. Under New York law, the class B violent felony offenses of which Petitioner was convicted — Attempted Murder in the Second Degree, Second Degree Kidnapping, and Sodomy in the First Degree — were subject to sentences with a maximum of six to twenty-five years' imprisonment, and a minimum sentence of one-third of the maximum. See id. § 70.02(3) (a), (4). Petitioner was sentenced to eight years and four months to twenty-five years' imprisonment for Attempted Murder and Second Degree Kidnapping, and three to nine years' imprisonment for the Sodomy conviction. Petitioner's offense of Criminal Use of a Firearm in the First Degree was a class B armed violent felony, which entailed a maximum sentence of six to twenty-five years' imprisonment, and a minimum sentence fixed between one-third and one-half of the maximum sentence imposed. See id. Petitioner received a sentence of ten to twenty-five years' imprisonment for the offense. (See Sentencing Transcript, dated Nov. 21, 1996 ("S. Tr."), at 16-17.) All of the sentences were concurrent, except the for the Attempted Murder and Sodomy sentences, which are consecutive.
As Petitioner's aggregate sentence of thirty-six years and four months to life imprisonment was clearly within the permissible statutory parameters, Petitioner's excessive sentence claim should be dismissed with prejudice.
To the extent that Petitioner raises an Eighth Amendment challenge to his sentence, such a claim is unexhausted. In appealing his sentence to the Appellate Division, Petitioner did not rely on constitutional arguments, nor did he cite federal cases, or state cases implicating pertinent federal law concerns. Instead, the substance of Petitioner's claim on appeal was simply a request for leniency. See Pet'r App. Br. at 46-51; see also Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994) ("[T]o fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'"). As discussed, however, any constitutional claim has no merit and should be dismissed.
IV. Ineffective Assistance of Appellate Counsel Claim
Petitioner claims, as he did in his coram nobis application, that his appellate counsel was ineffective for failing to raise claims challenging: (1) the sufficiency of the evidence presented at trial; (2) the trial court's reliance on "misinformation" at sentencing; (3) the length of his sentence on Eighth Amendment grounds; and (4) his trial counsel's "ineffective performance". (See Amended Petition at 3.)
A. Legal Standard
Ineffective assistance of counsel claims are "squarely governed by the Supreme Court's holding in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)." Williams, 529 U.S. at 390, 120 S. Ct. at 1511; see also Aparicio, 269 F.3d at 95 n. 8. In order to prevail on a claim of ineffective assistance of counsel, a habeas petitioner must satisfy a two-part test. See Strickland, 466 U.S. at 687, 104 S. Ct. at 2064-65; Lanfranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002). First, Petitioner must establish that his attorney's performance was so deficient that it "fell below an objective standard of reasonableness."Strickland, 466 U.S. at 688, 104 S. Ct. at 2064. In applying this first prong of the Strickland test, a court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689, 104 S. Ct. at 2065 (citation and internal quotation marks omitted); see also Yarborough v. Gentry, 540 U.S. 1, 8, 124 S. Ct. 1, 6 (2003) ("The Sixth Amendment guarantees reasonable competence, not perfect advocacy judged with the benefit of hindsight."). A court may not use hindsight to second guess counsel's tactical choices, see Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Cox v. Donnelly, 387 F.3d 193, 198 (2d Cir. 2004), "simply because the chosen strategy has failed." United States v. Helgesen, 669 F.2d 69, 72 (2d Cir. 1982); accord United States v. DiTommaso, 817 F.2d 201, 215 (2d Cir. 1987).
To satisfy the second part of the Strickland test, a habeas petitioner must demonstrate that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. "Reasonable probability" is defined as "a probability sufficient to undermine confidence in the outcome" of the trial. Id. "The level of prejudice that [a petitioner] need demonstrate lies between prejudice that had some conceivable effect and prejudice that more likely than not altered the outcome in the case." Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001) (internal quotation marks omitted). Counsel's errors must be considered in the "aggregate," in order to determine their cumulative effect. See id. at 199 (citing Strickland, 466 U.S. at 695-96, 104 S. Ct. at 2069). "Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim."Strickland, 466 U.S. at 700, 104 S. Ct. 2071.
Although the Strickland standard was formulated in the context of evaluating a claim of ineffective assistance of trial counsel, the test also applies to claims directed at appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1998); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992);Abdurrahman v. Henderson, 897 F.2d 71, 74 (2d Cir. 1990). "In attempting to demonstrate that appellate counsel's failure to raise a state claim constitutes deficient performance, it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made."Mayo, 13 F.3d at 533. Appellate attorneys are "entitled to exercise their professional judgment to focus on one or two key issues while 'winnowing out weaker arguments.'" Benn v. Stinson, 917 F. Supp. 202, 206 (S.D.N.Y. 1995) (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 3313 (1983));see also Evitts v. Lucey, 105 S. Ct. 830, 835, 469 U.S. 387, 394 (1985); Cunningham v. Henderson, 725 F.2d 32, 35 (1984). Moreover, a reviewing court should not second-guess an attorney's reasonable professional judgment as to the most promising issues on appeal, see Jones, 463 U.S. at 754, 103 S. Ct. at 3314;Cunningham, 725 F.2d at 36, even though the appeal was unsuccessful. See Mayo, 13 F.3d at 533 ("A reviewing court must judge [counsel's] conduct on the basis of the facts of the particular case, 'viewed as of the time of counsel's conduct,' . . . and may not use hindsight to second-guess his strategy choices.") (citations omitted). A petitioner may establish constitutionally inadequate performance by appellate counsel only by showing that counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Id. In addition, a habeas petitioner must demonstrate that appellate counsel's error or omission so prejudiced his chances on appeal that, absent counsel's deficient performance, there is a reasonable probability that his appeal would have been successful. See id. at 534.
Finally, "[f]or [Petitioner] to succeed . . ., he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d) (1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly." Bell v. Cone, 535 U.S. 685, 698-99, 122 S. Ct. 1843, 1852 (2002). Rather, Petitioner must demonstrate that the state appellate court applied Strickland to the facts of his case in an objectively unreasonable manner.See id.
* * *
In the instant case, Petitioner's appellate counsel wrote a thorough and well-reasoned fifty-two-page brief in which he raised two significant issues. In contrasting the disputed jury instruction with the New York state model, Petitioner's appellate counsel raised an issue which had not been resolved in the New York courts. Further, appellate counsel challenged the sentence imposed by the state court on the only reasonable grounds available. In contrast, the purported deficiencies which Petitioner now raises all address insubstantial or clearly meritless claims, which were raised in his coram nobis application and rejected by the New York courts.B. Sufficiency of the Evidence Claim
Petitioner contends that his appellate counsel was ineffective for failing to present a sufficiency of the evidence claim to the Appellate Division. In his coram nobis application, Petitioner argued that the evidence presented at trial did not establish that, acting independently on in concert with Camilo, he committed the charged offenses. (See Memorandum of Law in Support of Petitioner's Coram Nobis Application, Ex. G to Resp't. Appx., at 3.) Petitioner argued that his sexual interactions with MM were consensual. (See id. at 7.) Further, Petitioner argued that the "evidence [did] not show that [he] requested or intended to kidnap or kill or attempt to kill the two girls." (See id. at 5.)
A "sufficiency of the evidence" claim is based on federal due process principles. See Jackson v. Virginia, 443 U.S. 307, 317-19, 99 S. Ct. 2781, 2788-89 (1979) (the Fourteenth Amendment requires record evidence to reasonably support a finding of guilt beyond a reasonable doubt). It is well-established "that in challenging the sufficiency of the evidence to support [a] conviction, a defendant bears a heavy burden." United States v. Abelis, 146 F.3d 73, 80 (2d Cir. 1998) (quoting United States v. Giraldo, 80 F.3d 667, 673 (2d Cir. 1996)); accord Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993). To overturn a conviction based on insufficiency of the evidence, a petitioner must establish that, viewing "the evidence in the light most favorable to the State . . . no rational trier of fact could find proof of guilt beyond a reasonable doubt based on the evidence adduced at trial." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002); accord Knapp v. Leonardo, 46 F.3d 170, 178 (2d Cir. 1995). "[A] federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Jackson, 443 U.S. at 326, 99 S. Ct. at 2793.
Under New York law, a person commits Murder in the Second Degree when, "with intent to cause the death of another person, he causes the death of such person," and commits Attempted Murder in the Second Degree when "he engages in conduct which tends to effect the commission of such crime." N.Y. Penal Law §§ 111.00, 125.25(1) (McKinney 1996). "A person is guilty of kidnapping in the second degree when he abducts another person" and is guilty of kidnapping in the first degree when "the person abducted dies during the abduction." Id. §§ 135.20, 135.25(3). Sodomy in the First Degree requires a person to forcibly compel another to engage in deviant sexual intercourse. See id. § 130.50(1). Criminal Use of a Firearm in the First Degree occurs when a person "commits any class B violent felony offense and . . . displays what appears to be a pistol, revolver, rifle, shotgun, machine gun, or other firearm. Id. § 265.09(1). Further, a person is an accomplice to any offense defined in the New York Penal Code if, "acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." Id. § 22.00.
"The testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." Edwards v. Jones, 720 F.2d 751, 755 (2d Cir. 1983) (quoting United States v. Danzey, 594 F.2d 905, 916 (2d Cir. 1979)); United States v. Frampton, 382 F.3d 213, 222 (2d Cir. 2004) (same).
In the instant case, the State presented eyewitness testimony describing Petitioner's role in the events of July 22, 1995. DW testified that Petitioner, with a pistol in his hand, instructed her and MM to walk into the park and threatened to shoot them if they did not comply with his orders. (See Tr. at 261.) She also testified that Petitioner instructed her to undress and continued to point his gun at her and MM during their walk through the park. (See id. at 264-65.) MM was required to perform oral sex on Petitioner. (See id.) In addition, DW testified that Camilo and Petitioner both made statements reflecting their intent to kill the two women. (See id. at 266.) Camilo then shot DW, who sustained serious injury to various organs. MM was shot and killed.
DW's testimony provided sufficient evidence to satisfy the elements of each of the offenses of which Petitioner was convicted. Although, in his post-arrest statements to the police, Petitioner denied having any awareness that Camilo was carrying a gun, and Petitioner contends that DW has a history of prostitution and drug abuse, these issues only raise questions of credibility, which were for the jury to consider and resolve.See United States v. Singh, 390 F.3d 168, 187 (2d Cir. 2004) ("We are constrained to consider the evidence in a light most favorable to the government, to draw all permissible inferences in the government's favor and to favor the jury's verdict in resolving issues of credibility."); Frampton, 382 F.3d at 221 ("It is well-established that the evaluation of witness credibility is a function of the jury."); United States v. Gaskin, 364 F.3d 438, 460 (2d Cir. 2004) ("We must assume that the jury resolved all credibility disputes in favor of the prosecution.").
Because there is no basis to conclude that a sufficiency of the evidence argument could succeed, Petitioner's appellate counsel was not ineffective for failing to assert such a claim on direct appeal.
C. "Misinformation" Claim
Petitioner claims that his appellate counsel was ineffective for failing to raise a claim premised on the trial court's reliance on "untrue misinformation" in determining Petitioner's sentence. (Pet'r Coram Nobis Mem. at 7.) During Petitioner's sentencing hearing, the prosecutor spoke about a confidential informant who had informed him that he spoke with Petitioner sometime after July 22, 1995. (See S. Tr. at 4.) According to the informant, Petitioner admitted to personally having killed MM. (See id.) The prosecutor asked to court to consider the information for "whatever its worth." (Id.) The prosecutor also informed the court that he received information from the victim, DW, that in the course of the year leading up to the trial, various people approached her and told her that "word was out among the drug dealers and people on 185th Street and Audubon Avenue that the dealers wanted her to come back to the block, speak to the powers that be and talk about taking some money in exchange for not testifying in this case." (Id. at 5.) The prosecutor portrayed these conversations as attempts by associates of Petitioner to interfere with the prosecution of the case.
Contrary to Petitioner's contention, in challenging Petitioner's sentence as excessive, his appellate counsel argued that the sentencing court should have entirely dismissed the prosecutor's unproven contentions, and that it gave undue weight to everything the prosecutor presented. (See Pet'r App. Br. at 49.) The Appellate Division rejected the argument as a basis for reducing Petitioner's sentence.
Although Petitioner appears to fault his attorney for not raising the issue as a due process claim, there is no reason to believe that, had he done so, the outcome of Petitioner's appeal would have been different. "Both the Supreme Court and [the Second Circuit] . . . have consistently held that the right of confrontation does not apply to the sentencing context and does not prohibit the consideration of hearsay testimony in sentencing proceedings." United States v. Martinez, 413 F.3d 239, 242 (2d Cir. 2005); see also United States v. Carmona, 873 F.2d 569, 574 (2d Cir. 1989) ("All of the procedural safeguards and evidentiary limitations of a criminal trial are not required at sentencing. It is not a denial of due process for the trial judge, when determining sentence, to rely on evidence given by witnesses whom the defendant could neither confront no cross-examine."); Arocho v. Walker, No. 01 Civ. 1367 (NRB), 2001 WL 856608, at *4 (S.D.N.Y. July 27, 2001) ("Unlike at trial, a sentencing judge need not apply the usual evidentiary rules and may consider a much wider range of information. For example, a sentencing judge may consider hearsay, evidence of uncharged crimes, dropped counts of an indictment, and crimes charged that resulted in an acquittal.") (internal citations omitted).
Nevertheless, sentencing proceedings are not entirely free of due process protections. See United States v. Tucker, 404 U.S. 443, 447, 92 S. Ct. 589, 591-92 (1972) (Supreme Court overturns sentence premised on two prior convictions for which defendant was unrepresented, stating "we deal here, not with a sentenced imposed in the informed discretion of a trial judge, but with a sentence founded at least in part upon misinformation of constitutional magnitude"); Martinez, 413 F.3d at 244 (citing United States v. Egge, 223 F.3d 1128, 1132 (9th Cir. 2000)) ("Although the Confrontation Clause does not apply at sentencing, a defendant clearly has a due process right not to be sentenced on the basis of materially incorrect information. Due process requires that some minimal indicia of reliability accompany a hearsay statement."); Arocho, 2001 WL 856608, at *4 ("Because due process dictates that a sentence may not be based on materially false facts or information, an effective chance to respond to the information presented to the sentencing court is critical. Thus, due process is satisfied in this respect as long as a defendant receives an adequate opportunity to respond to the prosecutor's allegations as to matters in dispute.") (internal citations omitted).
There was no due process violation at Petitioner's sentencing. After the prosecutor offered what Petitioner contends was "misinformation," Petitioner's trial counsel responded that the informant did not testify at trial and was not subject to cross-examination, and that any pressure placed on DW had nothing to do with Petitioner. (See S. Tr. at 14.) Thus, there was an opportunity for response. In any event, in imposing Petitioner's sentence, the trial court gave no indication that it relied upon the information proffered by the prosecutor. It did state, however, that the evidence adduced at trial portrayed "a cold blooded execution" caused by a dispute over stolen drugs. (See id. at 15.) There was thus no basis for appellate counsel to argue that Petitioner's due process rights were violated because the trial court relied on misinformation in imposing its sentence. Compare Torres v. Berbary, 340 F.3d 63, 72 (2d Cir. 2003) ("The following elements unique to this case, compel the issuance of a writ of habeas corpus: total reliance by the trial court on a hearsay report that itself contains only uncorroborated statements of unnamed informant. . . .").
In Torres, the Second Circuit appears to have concluded, on facts unique to that case, that due process requires that disputed facts relied upon by a sentencing judge must be proven by a preponderance of the evidence. See Torres, 340 F.3d at 69, 72. However, the Supreme Court decision relied upon by theTorres court in reaching its conclusion, explicitly found that "[s]entencing courts have traditionally heard evidence and found facts without any prescribed burden of proof at all." McMillan v. Pennsylvania, 477 U.S. 79, 91, 106 S. Ct. 2411, 2419 (1986). The McMillan court merely affirmed that the "preponderance of the evidence" standard required by Pennsylvania satisfied the requirements of due process. See id. at 91-92, 106 S. Ct. at 2419. See Coleman v. Ricks, 281 F. Supp. 2d 549, 559-60 (E.D.N.Y. 2003) (questioning Torres court's conclusion). This issue need not be addressed by this Court since, as discussed, there is no reason to conclude that the sentencing court relied on any disputed facts in imposing Petitioner's sentence.
Accordingly, Petitioner's appellate counsel was not ineffective in failing to allege a due process violation.
D. Eighth Amendment Claim
Petitioner contends that his appellate counsel was ineffective for failing to challenge his sentence on Eighth Amendment grounds. However, as the Second Circuit has observed, the Eighth Amendment
forbids only extreme sentences that are 'grossly disproportionate' to the crime, Harmelin v. Michigan, 501 U.S. 957, 1001, 111 S. Ct. 2680, (1991) (Kennedy, J., concurring in part and concurring in the judgment) (quoting Solem v. Helm, 463 U.S. 277, 288, 103 S. Ct. 3001 (1983)), and, with the exception of capital punishment cases, successful Eighth Amendment challenges to the proportionality of a sentence have been "exceedingly rare." Rummel v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133 (1980). [Defendant's] sentence, even if well beyond his life expectancy, is not disproportionate, much less "grossly disproportionate," to his crimes. We and other courts have universally upheld sentences where the term of years is greater than the defendant's expected natural life for less serious crimes. See, e.g., United States v. Saccoccia, 58 F.3d 754, 786-89 (1st Cir. 1995) (upholding 660-year sentence for racketeering, money laundering, and related offenses); United States v. Berryhill, 880 F.2d 275, 277 (10th Cir. 1989) (affirming 300-year sentence for kidnapping), overruled in part on other grounds, United States v. Daily, 921 F.2d 994, 1004 (10th Cir. 1990); United States v. Salerno, 868 F.2d 524, 543 (2d Cir. 1989) (upholding 100-year sentences for RICO violations in face of Eighth Amendment challenges); Rothgeb v. United States, 789 F.2d 647, 651 (8th Cir. 1986) (affirming consecutive terms of life imprisonment for first-degree murder and 210 years for second-degree murder).United States v. Yousef, 327 F.3d 56, 163 (2d Cir. 2003); see also Lockyer v. Andrade, 538 U.S. 63, 77, 123 S. Ct. 1166, 1175 (2003) (Supreme Court reverses grant of writ of habeas corpus for challenge to two consecutive terms of twenty five years' imprisonment for two counts of petty theft, under California's "three strikes" sentencing scheme, holding: "The gross proportionality principle reserves a constitutional violation for only the extraordinary case.").
Petitioner's sentence of thirty-six years and four months' imprisonment for murder, attempted murder, two counts of kidnapping, sodomy, and criminal use of a firearm, clearly does not present one of those "exceedingly rare" instances where the sentence was so disproportionate to the offenses that it violated the Eighth Amendment. Accordingly, Petitioner's appellate counsel was not ineffective for failing to present this claim to the Appellate Division.
E. Ineffective Assistance of Trial Counsel Claim
Petitioner contends that his appellate counsel was ineffective for failing to present an ineffective assistance of trial counsel claim to the Appellate Division. In Petitioner's coram nobis application, he argued that his trial counsel was ineffective for failing to object on constitutional grounds to the limitations imposed by the trial court on the cross-examination of Officer Fontanez. Petitioner also argued that his trial counsel should have raised a constitutional argument in response to the prosecutor's statement about the informant during his sentencing hearing. Petitioner now contends that his appellate counsel's failure to present an ineffective assistance of trial counsel claim on these grounds rendered Petitioner's appellate counsel ineffective under the Strickland standard.
Petitioner correctly recognizes that, "[t]he rights to confront and cross-examine witnesses and to call witnesses in one's own behalf have long been recognized as essential to due process."Chambers, 410 U.S. at 294, 93 S. Ct. at 1045. However, it is also well-established that trial judges are not prohibited from placing limitations on a defense counsel's examination of a prosecution witness. See Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S. Ct. 1431, 1435 (1986) ("Trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant."); Howard v. Walker, 406 F.3d 114, 129 (2d Cir. 2005) ("Limitations on cross-examination may be lawful and legitimate if they are harmonious with the goal of ensuring the legitimacy of the truthfinding process.").
In light of the discretion trial judges are afforded in this area, and the fact that Officer Fontanez clearly invoked the Fifth Amendment with regard to the collateral matter of his arrest, Petitioner's trial counsel was not ineffective for failing to object on constitutional grounds to any limitations placed on his cross-examination of Fontanez about his arrest. Once Officer Fontanez invoked his Fifth Amendment privilege, there was no basis to question him further about the arrest, and Petitioner's Sixth Amendment right to confront witnesses was not violated by his inability to do so. See United States v. Brooks, 82 F.3d 50, 54-55 (2d Cir. 1996) (no Sixth Amendment violation where the witness invoked Fifth Amendment privilege on a collateral matter that did not preclude inquiry into his direct testimony); Dunbar v. Harris, 612 F.2d 690, 692-94 (2d Cir. 1979 (same); Avincola v. Stinson, 60 F. Supp. 2d 133, 155-57 (S.D.N.Y. 1999). "[T]he Sixth Amendment is violated only when assertion of the privilege undermines the defendant's opportunity to test the truth of the witness' direct testimony. . . . If the court determines that the privilege has been invoked with respect to a collateral matter or that the invocation does not preclude inquiry into the witness' direct testimony, then the defendant's right to cross-examine has not been impinged and no corrective action is necessary."). Accordingly, appellate counsel was not ineffective for failing to raise this claim.
As to the failure of defense counsel to raise a constitutional objection to the prosecutor's hearsay statements at the sentencing hearing, as discussed, defense counsel did object to the court's consideration of the matters proffered by the prosecutor, and there is no evidence to suggest that the trial court based it sentence on the hearsay statements. In addition, as discussed, a sentencing judge is afforded considerable discretion with respect to the information he or she may consider, and is permitted to consider hearsay evidence. Therefore, there was no sound constitutional basis on which defense counsel could have objected to the prosecutor's statements. Because trial counsel was not ineffective for failing to raise a constitutional challenge to the prosecutor's statements, appellate counsel was not ineffective for failing to raise this claim on appeal.
For all of these reasons, the Court recommends that Petitioner's claim of ineffective assistance of appellate counsel be dismissed.
CONCLUSION
For the reasons set forth above, this Court respectfully recommends that the Petition be dismissed with prejudice. Further, because Petitioner has not made a substantial showing of the denial of a federal right, this Court recommends that no certificate of appealability be issued. See 28 U.S.C. § 2253(c)(2); Lucidore v. N.Y. State Div. of Parole, 209 F.3d 107, 112 (2d Cir. 2000) This Court further recommends certification, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from the Court's order would not be taken in good faith.See Coppedge v. United States, 369 U.S. 438, 445-46, 82 S. Ct. 917, 921 (1962).
Pursuant to 28 U.S.C. § 636(b)(1)(C) and Rule 72 of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6(a), (e). Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Richard J. Holwell, United States District Judge, and to the chambers of the undersigned, Room 1660. Any requests for an extension of time for filing objections must be directed to Judge Holwell. Failure to file objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140, 155, 106 S. Ct. 466, 475 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam).