Opinion
No. 99-CV-6123CJS
October 6, 2003
Newnon Flax, pro se, Auburn Correctional Facility, Auburn, NY, for Petitioner
Frank J. Clarke, Esq., Buffalo, NY, for Respondent
DECISION AND ORDER
INTRODUCTION
Petitioner Newnon Flax ("Flax") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Erie County Court on one count of rape in the first degree, one count of robbery in the second degree, and one count of burglary in the second degree. For the reasons set forth below, Flax's § 2254 petition is dismissed.
FACTUAL BACKGROUND
On November 10, 1987, Flax was charged under Indictment Number 87-0889-001 with one count of first degree rape for the June 4, 1987 assault of Carol Peal ("Peal"). Under the same indictment, he was charged with one count of second degree burglary, one count of second degree robbery, and one count of first degree rape for the September 11, 1987 attack of Linda Jacobs ("Jacobs").The Peal Case
On June 4, 1987 as Peal was walking home from the store late at night on Buffalo's eastside, Flax grabbed her from behind, held a knife to her neck and told her not to scream. He dragged her to a nearby house, pushed her inside, and raped her. Flax fled the scene after the attack, taking her purse with him. Peal was taken to the hospital and examined; the laboratory tests confirmed the presence of semen.
Peal had known Flax as an acquaintance prior to the rape. Several days later, she decided to return to the neighborhood bar where she had seen Flax earlier on the night of the rape in order to look for him. When Flax saw her enter the bar, he began screaming at her and called her a liar. Peal tried to use the phone to call the police, but Flax depressed the receiver, allegedly told her she was "dead meat," and left the bar.
Peal eventually was able to use a pay telephone outside of the bar to call 911. When the police arrived, she rode with them in the patrol car and eventually spotted Flax on the porch of a house in the neighborhood. The police then stopped and arrested him. Flax apparently was released after his initial arraignment on the Peal charge. The Jacobs Case
On September 11, 1987, Jacobs encountered Flax at a bar in the building where she worked in downtown Buffalo. Jacobs previously had been involved in a relationship with Flax, but they were no longer dating at that time. That evening, Flax propositioned Jacobs sexually several times, but she rebuffed his advances. The bar manager eventually called the police because Flax would not stop harassing Jacobs; the police removed Flax from the bar but did not arrest him. After the police left, Flax returned to the bar and continued to pester Jacobs.
As a result, Jacobs decided to leave. When she hailed a taxi at the bus station, Flax got into the cab behind her and followed her home. Soon thereafter, he appeared at her window asking to be let in. Jacobs left the apartment and tried to solicit help from her neighbors in the housing complex. The search was unsuccessful. As she was opening the door to her apartment, she was grabbed by Flax from behind and pushed inside. Flax forced her into the bedroom where he shoved her down and raped her. Flax failed to ejaculate, however, because Jacobs kicked him. Flax then left the apartment taking her checkbook with $200 in cash. Jacobs chased after him with a stick, yelling at him to give back her checkbook.
Jacobs told the police that night that she had been robbed and sexually abused; she claimed that she did not think Flax raped her because he had not ejaculated. Jacobs was not examined by a doctor until two days after the assault, and no semen samples of value in confirming the rape could be obtained. The Trial and Verdict
Flax was tried before a jury in Erie County Supreme Court (Kasler, J.) on May 9 to May 13, 1988. The jury convicted him of the Peal rape, but acquitted him of the rape charge involving Jacobs. The jury also found Flax guilty of robbery in the second degree and burglary in the second degree with regard to the Jacobs incident. Flax was sentenced on June 17, 1988 to an indeterminate term of imprisonment of 12 1/2 to 25 years on the rape charge, and two indeterminate terms of 7 1/2 to 15 years on the burglary conviction and robbery conviction. All sentences were set to run concurrently.
PROCEDURAL HISTORY
Flax appealed his conviction to the Fourth Department which unanimously affirmed his conviction in a decision entered November 15, 1989. People v. Flax, 155 A.D.2d 894 (N.Y.App.Div. 1989). The Appellate Division further found that the trial court improperly sentenced Flax to concurrent terms of imprisonment and remanded the matter for the imposition of consecutive sentences. Id. at 894. The Court of Appeals denied leave to appeal on May 24, 1990.
Flax sought to have his appellate counsel declared ineffective in two applications for a writ of error coram nobis filed on May 3, 1993 and November 12, 1994. The Fourth Department denied the requested relief in both instances. Flax also attacked his conviction collaterally in two motions to vacate the judgment pursuant to New York Criminal Procedure Law ("C.P.L.") § 440.10 filed on March 9, 1994, and March 2, 1995, respectively. After the trial court denied the motions, the Fourth Department denied leave to appeal in both instances, as did the Court of Appeals.
This federal habeas petition followed in which Flax raises the following grounds for relief: 1) the indictment was defective; 2) his appellate counsel was ineffective; 3) his trial counsel was ineffective; 4) the trial court erred in its Sandoval ruling, improperly limited the read-back of testimony to the jury, issued an erroneous reasonable doubt charge, and failed to order a competency hearing; and 5) the identification evidence against him was insufficient and based on an unduly suggestive identification procedure.
DISCUSSION
Timeliness
By order dated April 15, 1999, the Court (Curtin, J.) directed Flax to explain why his federal habeas petition, filed on March 15, 1999, some nine years after his conviction became final, was not untimely under 28 U.S.C. § 2244(d)(1). Upon review of Flax's response dated April 11, 1999, see Docket ("Dkt.") #5, Judge Curtin determined that his petition should be considered timely. See Dkt. #6. Respondent, however, continues to challenge the timeliness of Flax's petition. For the reasons stated below, the Court disagrees with respondent and finds the petition is indeed timely.
Along with the enactment of the Antiterrorism and Effective Death Penalty ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), came a limitations period for the filing of federal petitions for habeas corpus. AEDPA's general rule is that a petitioner in custody as a result of a state-court conviction has one year after the date that his or her conviction becomes final in which to file. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998); 28 U.S.C. § 2244(d)(1). In Ross, the Second Circuit determined that a prisoner such as Flax, whose conviction became final before AEDPA's effective date of April 24, 1996, has a one-year grace period, or until April 24, 1997, to file a § 2254 habeas petition. See Ross, 150 F.3d at 103; accord Adeline v. Stinson, 206 F.3d 249, 251 (2d Cir. 2000).
Under AEDPA, "`[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.'" Adeline v. Stinson, 206 F.3d 249, 251 (2d Cir. 2000) (quoting 28 U.S.C. § 2244(d)(2)). In Bennett v. Artuz, 199 F.3d 116 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000), the Second Circuit held that this tolling provision applies to "a petition challenging a pre-AEDPA conviction" and the one-year period determined to be applicable by Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998). Bennett, 199 F.3d at 118-19.
To qualify for the benefit of § 2244(d)(2)'s tolling provision, "`an application for state post-conviction relief recognized as such under governing state procedures [must] ha[ve] been filed'" by the petitioner. Adeline, 206 F.3d at 251 (quoting Bennett, 199 F.3d at 123). A "`properly filed state-court petition is "pending" from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedure.'" Id. (quoting Bennett, 199 F.3d at 123).
In this case, Flax filed a habeas petition in state court pursuant to New York Civil Practice Law and Rules ("C.P.L.R.") § 7001 et seq. on March 17, 1997, thirty-eight (38) days before the one-year limitations period was to expire on April 24, 1997. Wyoming County Supreme Court denied Flax's state habeas petition on April 15, 1997. The Appellate Division affirmed the denial of the petition on November 13, 1998, People v. Flax, 255 A.D.2d 1018 (4th Dept. 1998), and the Court of Appeals denied leave to appeal on February 11, 1999, People v. Flax, 93 N.Y.2d 801 (1999). At that time, the one-year grace period again began to run. Flax therefore had thirty-eight (38) days, or until March 21, 1999, to file his federal petition.
According to the disbursement form attached to Flax's response to this Court on the timeliness issue, see Dkt. #5, his habeas petition was received by prison officials for mailing purposes on March 15, 1999, thirty-two (32) days later. The petition, filed with six (6) days left on the limitations period, therefore was timely. Moreover, the certified mail receipt attached to Flax's response shows that this Court received the petition on March 18, 1999, three days before the expiration of the one-year limitations period on March 21, 1999. See id.
When a prisoner is proceeding pro se, federal courts generally consider his or her petition for habeas corpus to have been filed "as of the date it was given to prison officials for forwarding to the court clerk." Adeline, 206 F.3d at 251 n. 1 (citing Houston v. Lack, 487 U.S. 266, 276 (1988)).
In opposition to Flax's request for habeas relief, respondent again challenges the petition's timeliness. See Respondent's Habeas Brief ("Resp. Habeas Br") at 9-10, Dkt. #12. Specifically, respondent complains that Flax's state court habeas petition did not toll the statute of limitations period pursuant to § 2244(d)(2) because its filing was "patently improper." Respondent argues that the state petition was not "properly filed" under 28 U.S.C. § 2244(d)(2) because the issues raised therein had been, or could have been, resolved on direct appeal and were inappropriate on an application for state court habeas relief. See id. at 10-11.
The Second Circuit has rejected the broad view of the term "properly filed" urged by respondent, noting its "reluctan[ce] to engraft a merit requirement into § 2244(d)(2) without some indication of congressional intent to do so." Bennett v. Artuz, 199 F.3d at 122 (internal quotations omitted). In keeping with the majority of courts to have considered the issue, the Second Circuit construed "`properly filed' to mean simply that an application for state post-conviction relief recognized as such under governing state procedures has been filed." Id. at 123 (rejecting argument that motion was not "properly filed" because petitioner "did not bring on-the-record claims . . . in a court that was empowered to review them on the merits" and finding federal habeas petition timely filed); accord, e.g., Pratt v. Greiner, 306 F.3d 1190, 1196 (2d Cir. 2002).
Thus, the Court's inquiry into whether a state court application has been "properly filed" is limited to whether the application was filed in accordance with "`the state's procedural requirements, such as the rules governing notice and the time and place of filing.'" Bennett, 199 F.3d at 121 (quoting Villegas v. Johnson, 184 F.3d 467, 469 (5th Cir. 1999) (internal quotations omitted)); accord, e.g., Pratt, 306 F.3d at 1196. Because respondent does not maintain that Flax's filings violated any New York state procedural requirement, Bennett controls and Flax's state habeas petition pursuant to C.P.L.R. § 7001 et seq. was a "properly filed" application for purposes of § 2244(d)(2)'s tolling provision. See Bennett, 199 F.3d at 123; Pratt, 306 F.3d at 1196. His federal habeas petition therefore is timely.
Exhaustion
Before seeking a writ of habeas corpus in federal court, Flax must have exhausted all available state remedies either on direct appeal or through a collateral attack of his conviction. 28 U.S.C. § 2254(b); Bossettv. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). Exhaustion of remedies requires that Flax have presented his constitutional claim to the highest state court from which a decision can be obtained. See Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.), cert. denied, 531 U.S. 819 (2000) (citing Grey v. Hoke, 933 F.2d 117, 119(2d Cir. 1991)). To fully exhaust a claim, Flax must have fairly apprised the state court of the claim's federal nature and of the factual and legal premises underlying the claim. Grey, 933 F.2d at 119-20; Daye v. Attorney General of New York, 696 F.2d 186, 192-94 (2d Cir. 1982).
Respondent raises the failure to exhaust only with regard to Flax's claim that his identification by Peal was unduly suggestive, which appears to be a subset of his insufficient evidence claim. See Petition ("Pet'n") at 6a, Dkt. #1. As respondent notes, the suggestive identification claim was not explicitly mentioned in appellate counsel's leave letter to the New York Court of Appeals. Consequently, respondent argues, the claim is unexhausted.
Although Flax mentions a suggestive identification argument in his Fourth Department brief, Flax failed to raise this claim specifically when seeking leave to appeal to the New York Court of Appeals. Resp. Habeas Br. at 25-26; Petitioner's Leave Letter ("Pet. Lv. Ltr."), Respondent's Exhibits ("Resp. Ex.") C. Flax's counsel's November 12, 1989 leave letter stated that "defendant-appellant seeks to raise the following issues to the Court of Appeals." The letter then sets forth in paragraph form the seven grounds for review. The only ground discussed in any detail was his concurrent sentencing claim. Thereafter, appellate counsel notes that "[e]ach of these errors require [sic] a reversal of the conviction and the granting of a new trial." Pet. Lv. Ltr., Resp. Ex. C. In closing, appellate counsel mentions that she is enclosing "the briefs submitted to the Appellate Division." Id.
Flax's suggestive identification claim comprises the final two paragraphs of his argument on direct appeal that the identification evidence against him was insufficient as a matter of law. See Petitioner's Appellate Brief ("Pet. App. Br.") at 28, Resp. Ex. B. It is clear from the text of the brief that the suggestive identification argument was not a separate claim, but rather was an additional basis for his insufficiency claim. See id. ("The unreliability and suggestiveness of the identification of appellant has rendered that identification insufficient."). Presumably, this is the reason appellate counsel did not feel it necessary to mention the suggestive identification claim as a separate ground for review.
The Court notes that the suggestive identification claim was part and parcel of the insufficient evidence which was specifically mentioned in the leave letter, and the brief as a whole was not unduly lengthy. In light of these factors, appellate counsel's failure to identify the suggestive identification claim as a separate ground for reversal did not impose a duty on the New York Court of Appeals to search for "a needle in a paper haystack," see Grey, 933 F.2d at 120, when considering Flax's appeal. Accordingly, the Court determines that the state court was fairly apprised of Flax's suggestive identification claim for exhaustion purposes.
The Second Circuit's decision in Grey v. Hoke, 933 F.2d 117 (2d Cir. 1991), is distinguishable. There, the petitioner identified one claim in his leave to appeal letter and also attached his Appellate Division briefs, which raised three issues including the one specified in the letter. Id. at 120. The Second Circuit held that only the one expressly raised claim had been exhausted, noting that "[t]he only possible indication that the other two claims were being pressed was the inclusion of a lengthy brief originally submitted to another court. This did not fairly apprise the court of the two claims." Id.
Respondent does not raise the failure to exhaust with respect to any of the other claims in Flax's federal habeas petition, and the Court agrees that they have been properly exhausted.
The Review Standard
Because the petition postdates the enactment of AEDPA's revisions of 28 U.S.C. § 2254 govern this proceeding. See Williams v. Taylor, 529 U.S. 362, 402 (2000). When Congress enacted AEDPA, it significantly curtailed the role of federal habeas courts in reviewing petitions filed by state prisoners. Id. A federal court may not grant a habeas petition on a claim that was adjudicated on the merits in state court unless that adjudication "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) and (2).
A state court decision is "contrary to"clearly 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 is an "unreasonable application" of Supreme Court precedent if it "correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular case." Id. at 407-08. The Supreme Court has made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. In order to justify habeas relief under § 2254, the state court's application of clearly established federal law must be "objectively unreasonable." Id. at 409. The Second Circuit has explained that while "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great." Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (internal citations omitted).
Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies. For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits" and (2) reduces its disposition to judgment. Sellan v. Kuhlman, 261 F.3d 303, 309, 311 (2d Cir. 2001) ("Nothing in the phrase `adjudicated on the merits' requires the state court to have explained its reasoning process."). Thus, although the Fourth Department only discussed his sentencing claim and proceed to summarily dismiss his remaining claims as "lacking in merit," the decision constitutes an adjudication on the merits. See, e.g., Brown v. Artuz, 283 F.3d 492, 498 (2d Cir. 2002) (finding the blanket phrase, "[Defendant's remaining contentions are without merit," an adjudication on the merits triggering the AEDPA standard of review).
Merits of the Petition 1. Defective Indictment
As his first ground for habeas relief, Flax contends that his "federal due process rights were violated when he was tried upon a count for which he was not indicted by the grand jury and for which he did not waive indictment." Pet'n at 6. Flax asserts that the grand jury did not hear testimony from complainant Carol Peal and never voted a "true bill of indictment" as to that count of rape. Thus, according to Flax, he "was tried and convicted of a crime which was not alleged in the indictment and for which he was not indicted." Petitioner's Habeas Brief ("Pet. Habeas Br.") at 2. Absent a true bill of indictment for the Peal rape, Flax states that "the trial court lacked jurisdiction" over him with regard to this charge. Id.
Respondent argues that the claim relating to the defective indictment is procedurally defaulted because Flax raised it on both of his motions to vacate the judgment, and the Erie County motion court twice found the claim procedurally barred pursuant to New York's Criminal Procedure Law ("C.P.L.") § 440.10(2)(c). See Sup.Ct. 4/21/94 C.P.L § 440.10 Order (Forma, J.), Resp. Ex. D; Sup.Ct. 8/29/95 C.P.L. § 440.10 Order (Forma, J.), Resp. Ex. E. In denying Flax's second C.P.L. § 440.10 motion, Justice Forma held that since Flax could have made the alleged defect in the indictment appear on the record and challenged it by way of a direct appeal, he was precluded from raising the error in a C. P. L. § 440.10 motion. See C.P.L. § 440.10(2)(c). On neither occasion did Justice Forma discuss the merits of this claim.
The Court agrees that Flax's claim relating to the indictment is procedurally barred. The Second Circuit has recognized that a court's reliance on C.P.L. § 440.10(2)(c) constitutes an adequate and independent state ground that precludes federal habeas review. See, e.g., Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001). Flax's claim may be considered by this Court only if there is cause for, and prejudice resulting from, the procedural default. Harris v. Reed, 489 U.S. 255, 262 (1989); accord Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
Flax does not attempt to demonstrate cause and prejudice forthe procedural default in his petition. However, Flax asserts that his "trial counsel failed to protect petitioner from being convicted of a charge for which he was never indicted and did not waive indictment." Pet'n at 6. The petition, thus, may be read to claim implicitly that the ineffectiveness of Flax's trial counsel supplies the "cause" and "prejudice" to avoid the procedural default of this claim.
A defense counsel's ineffectiveness in failing to properly preserve a claim for review in state court can suffice to establish cause for a procedural default only when the attorney's ineptitude rises to the level of a violation of a defendant's Sixth Amendment right to counsel. Aparicio, 269 F.3d at 91 (citing Edwards v. Carpenter, 529 U.S. 446, 451 (2000) and Murray v. Carrier, 477 U.S. 478, 488-89 (1986)). Stated another way, although attorney effectiveness can constitute cause for a procedural default, it must be more than mere error.
Flax cannot establish that his attorney's failure to move to dismiss the indictment based on the alleged lack of a "true bill" constitutes ineffective assistance because he has failed to show that such a motion had any factual or legal basis. Defense counsel cannot be deemed ineffective for failing to make a motion that is wholly unsubstantiated. As respondent points out, the trial record confirms that Peal testified before the grand jury. Trial Tr. at 89-91. In addition, the minutes of Peal's grand jury testimony were introduced by defense counsel as an exhibit at trial. Id. at 89. Furthermore, the indictment does not appear to be irregular in any way: it clearly states that Flax was indicted on a count of first degree rape occurring on June 4, 1987, the date on which Peal alleged that she was assaulted. See Indictment No. 87-0889-001, Resp. Ex. D. The Court does not find any basis in the record for Flax's claims that the grand jury did not vote to indict him for the Peal rape and that he was not properly indicted for that offense.
Moreover, if the motion to dismiss the indictment would not have succeeded, defense counsel's failure to make the motion does not constitute ineffective assistance because no prejudice inures to the petitioner in such a case. Cf. Erdheim v. Greiner, 22 F. Supp.2d 291 (S.D. N.Y. 1998) ("Since petitioner has not proved that he had a meritorious speedy trial claim, there is no reasonable probability that his counsel's failure to raise the motion affected the outcome of the case."). Lastly, beyond a bare assertion of innocence at his sentencing, Flax has not demonstrated that he is actually innocent of the crime of which he is convicted. Therefore, the Court's failure to consider his claims will not result in a fundamental miscarriage of justice. Jordan v. Bennett, 968 F. Supp. 118, 121 (W.D.N.Y. 1997).
2. Ineffectiveness of Appellate Counsel
Flax's habeas petition challenges the performance of his appellate counsel solely on the basis of counsel's failure "to raise, among other issues, the issue that petitioner was never indicted for the [rape of Carol Peal]." Pet'n at 6. Flax sought to have appellate counsel declared ineffective on this basis in his November 1994 application for a writ of error coram nobis, The Fourth Department denied Flax's application without opinion on December 23, 1994. See Resp. Ex. G. Flax does not identify with specificity any other alleged omissions by appellate counsel in his habeas petition.
A claim for ineffective assistance of appellate counsel is evaluated upon the same standard as is a claim of ineffective assistance of trial counsel. Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (citing Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992)), cert. denied, 508 U.S. 912 (1993)). A petitioner alleging ineffective assistance of appellate counsel must prove both that appellate counsel was objectively unreasonable in failing to raise a particular issue on appeal, and absent counsel's deficient performance, there was a reasonable probability that defendant's appeal would have been successful. Mayo, 13 F.3d at 533-34; Smith v. Robbins, 528 U.S. 259, 285 (2000); Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001).
Appellate counsel "need not (and should not) raise every nonfrivolous claim, but rather may select from among them in order to maximize the likelihood of success on appeal." Smith v. Robbins, 528 U.S. at 288 (citing Jones v. Barnes, 463 U.S. 745, 750-54 (1983)); accord, e.g., Sellan v. Kuhlman, 261 F.3d at 317 ("This process of `winnowing out weaker arguments on appeal and focusing on' those more likely to prevail, far from being evidence of incompetence, is the hallmark of effective appellate advocacy."). The habeas court should not second-guess the reasonable professional judgments of appellate counsel as to the most promising appeal issues. E.g., Jones, 463 U.S. at 754; Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998)
Thus, a petitioner may establish constitutionally inadequate performance only by showing that appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Mayo, 13 F.3d at 533. Because Flax has failed to demonstrate that his appellate counsel's performance was unreasonable, he cannot meet the first prong of the Strickland standard. Here, appellate counsel persuasively argued seven important issues in a thorough appellate brief to the Fourth Department. In contrast, the jurisdictional issue urged by Flax in his habeas petition is neither significant nor obvious. Thus, it was entirely reasonable for Flax's appellate counsel to omit this argument on appeal.
However, even if Flax could establish that his appellate counsel's lawyering was deficient, Flax has not demonstrated that he was prejudiced by the deficiency. As discussed at page 14, supra, the argument based on alleged jurisdictional deficiencies in the indictment is without merit. Thus, Flax cannot establish prejudice because there was no "reasonable probability" that the omitted issue would have succeeded if it had been argued on appeal. See Torres v. Irvin, 33 F. Supp.2d 257, 267 (S.D.N.Y. 1998) (citing Mayo, 13 F.3d at 534)); Angel v. Garvin, 2001 WL 327150, at *10 (S.D.N.Y. Apr. 3, 2001) (finding that petitioner could not establish prejudice as a result of appellate counsel's failure to raise non-meritorious claim based on insufficiency of the evidence). Flax's claim that his appellate counsel was ineffective is therefore without merit and does not entitle him to habeas relief.
3. Ineffectiveness of Trial Counsel
Flax asserts that "[a]mong other errors, trial counsel failed to protect petitioner from being convicted of a charge for which he was never indicted and did not waive indictment." Pet'n at 6. As Flax does not specify any other alleged errors by trial counsel in his petition, the only ground which this Court will review is trial counsel's "failure to protect [Flax] from being convicted" of the Peal rape, for which the grand jury allegedly never voted to indict him. See id.
In Strickland v. Washington, 466 U.S. 668, 686 (1984), the Supreme Curt held that "the benchmark for judging any claim of ineffectiveness [of trial counsel] must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." The two-part standard set forth in Strickland for evaluating the effectiveness of trial counsel requires that "[f]irst, the defendant must show that counsel's performance was deficient[,] [and] [s]econd, the defendant must show that the deficient performance prejudiced the defense." Id. at 687. To meet the first element, Flax must show that his counsel's performance was objectively unreasonable under "prevailing professional norms." Id. at 688. The second element requires a showing that but for counsel's unprofessional errors, there is a reasonable probability that the outcome of the trial would have been different. Id. at 691, 694. "A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." Id. If a petitioner fails to make a sufficient showing as to either of these two prongs of inquiry, i.e. deficient performance or actual prejudice, a federal habeas court may dispose of the claim without addressing the other prong. Strickland, 466 U.S. at 697.
Flax cannot establish either element of the Strickland test. Flax contends that "had counsel moved for inspection of the grand jury minutes on [the] ground [that he was not indicted for the Peal rape] when it became clear that the unindicted count was being put before the jury, the minutes . . . would have clearly demonstrated the absence of a True Bill." The Court's review of the record establishes, however, that trial counsel submitted an omnibus motion dated December 11, 1987, which included a request pursuant to C.P.L. § 210.30 for inspection of the grand jury minutes, as well as a motion to dismiss the indictment by reason of the legal insufficiency of the evidence presented to the grand jury and a motion for severance. The Court cannot find that by failing to include the additional ground for dismissal of the indictment urged by Flax in his petition, counsel's performance fell below the objective standards of reasonableness dictated by prevailing professional norms. See Strickland, 466 U.S. at 688.
In addition, Flax's claim that he was never indicted for the Peal rape is factually baseless and without merit. See page 14, supra. Thus, Flax was not prejudiced by trial counsel's failure to move to dismiss the indictment on that basis. See Hampton v. Herbert, 2002 WL 1751402, at *8 (E.D.N.Y. July 24, 2002) (counsel's failure to make Clayton motion to dismiss indictment in the furtherance of justice, which most likely would have been denied, did not prejudice petitioner); Jamison v. Berbary, 2002 WL 1000283, at *15 (S.D.N.Y. May 15, 2002) (finding that petitioner not prejudiced by trial counsel's failure to make speedy trial motion which would not have been successful); Mance v. Miller, 2002 WL 377533, at *5 (S.D.N.Y. Mar. 8, 2002) (counsel not unprofessional in failing to make motion based on pre-indictment delay which would have been unsuccessful, and petitioner not prejudiced thereby).
This Court has reviewed the entire record and finds that Flax's counsel did not fall below an objective standard of reasonably effective assistance. To the contrary, counsel made pre-trial motions, including a request for severance and inspection of the grand jury minutes. Counsel obtained an order granting Flax a competency hearing and sought a Sandoval ruling prior to trial. At trial, counsel vigorously cross-examined witnesses, strongly objected to every attempt by the prosecution to introduce evidence unfavorable to his client, and pursued a cogent defense theory. Counsel also moved to dismiss the indictment at the close of the prosecution's proof, and moved to overturn the conviction at sentencing. Flax received constitutionally meaningful representation at his trial, and his ineffective assistance of counsel claim provides no basis for habeas relief.
4. Trial Court Errors
Flax contends that "[e]videntiary and legal errors made in the trial court's rulings singly and in combination denied petitioner a fair trial." Pet'n at 6. He raises the following four errors as grounds for relief: (1) the trial court's erroneous Sandoval ruling forced him to give up his right to testify in his own behalf; (2) the trial court erroneously refused to re-read certain cross-examination testimony in response to a request for a read-back of testimony by the jury; (3) the jury instruction on reasonable doubt was erroneous; and (4) the trial court abused its discretion in failing to hold a competency hearing. a. Erroneous Sandoval Ruling
Flax's Sandoval claim is not cognizable on habeas review. A habeas petitioner's failure to testify at trial is "fatal to any claims arising out of a Sandoval-type ruling" because absent such testimony, a court has no "adequate non-speculative basis upon which to assess the merits of the claim." Peterson v. LeFevre, 753 F. Supp. 518, 521 (S.D.N.Y.), aff'd, 940 F.2d 649 (2d Cir. 1991) (citing Luce v. United States, 469 U.S. 38, 41-42 (1984)); see also, e.g., Underwood v. Kelly, 692 F. Supp. 146, 151 (E.D.N.Y. 1988) ("[F]or a defendant to preserve the issue of admissibility for review, he must actually testify; otherwise any harm that the defendant faces is purely speculative."), aff'd mem., 875 F.2d 857 (2d Cir.), cert. denied, 493 U.S. 837 (1989); Shannon v. Senkowski, 2000 WL 1683488, at *6-7 (S.D.N.Y. Nov. 9, 2000); Beverly v. Walker, 899 F. Supp. 900, 909 (N.D.N.Y. 1995), aff'd, 118 F.3d 900 (2d Cir.), cert. denied, 522 U.S. 883 (1997). Here, Flax elected not to testify at trial. Accordingly, his Sandoval claim provides no basis for habeas relief.
People v. Sandoval, 34 N.Y.2d 371 (1974).
b. Incomplete Read-Back of Testimony
Flax claims that the trial court's refusal to reread certain cross-examination testimony of Carol Peal was erroneous and denied him a fair trial. Pet'n at 6. Flax maintains that the jury's request presumptively included a request for a segment of the accompanying cross examination which allegedly impeached Peal's testimony.
During deliberations, the jury submitted a note to Justice Kasler requesting a read-back of Peal's testimony from the time she left the bar until the time Flax kicked in the door of the residence on Townsend Street where he raped her. Trial Tr. at 491-93. Defense counsel informed the trial judge that the read-back should include a portion of Peal's cross-examination in which she acknowledged that she apparently made no mention of a knife when she testified before the grand jury, even though she thought that she had. Id. at 492-94. According to defense counsel, the questioning as to whether Peal testified before the grand jury that he had a knife was part of the "scenario" requested by the jury. Justice Kasler responded that "if the jury will want that, they'll ask me specifically." Id. at 493. Before the testimony was read back, the Court asked the jury if it wanted "[d]irect and cross. Everything in there?" Id. at 496. The jury responded that it did. The record indicates that "the requested testimony was read back[.]" Id. at 496.
Following the read-back, defense counsel stated to the trial court, in the presence of the jury, "Your Honor, again, I believe the knife was pertinent to this." Id. at 496. Defense counsel objected to the omission of the testimony a second time, outside the jury's presence, noting that the read-back included direct "testimony concerning the use of the knife by the assailant to the neck and that none of the cross-examination concerning the same fact was read to the jury." Id. at 498. In response, the court noted its agreement with the district attorney that cross-examination in which counsel asked Peal if Flax had a knife or how she saw the knife would be relevant, but her testimony as to whether or not she told the grand jury that Flax had a knife would not be. Id. at 493, 498.
Importantly, Flax did not defend on the basis that Peal was not attacked. Rather, defense counsel's theory of the case was that Peal mistakenly identified Flax as her assailant because he happened to be the last person she saw before the assault. Id. at 397. In his summation, counsel downplayed the familiarity between Flax and Peal and argued strongly to the jury that the prosecution's case hinged on a "speculative identification from three words." Id. at 395-97. It is clear that the crux of Flax's defense was that Peal's identification was "faulty." Id. at 398, 407. Thus, the court's failure to read back Peal's cross-examination concerning whether or not she testified before the grand jury that Flax was wielding a knife when he attacked her did not prejudice Flax's defense. See Johnson v. Walker, 74 F. Supp.2d 287, 304 (W.D.N.Y. 1999) (denying habeas relief on the basis that trial court's refusal to read back requested cross-examination was not prejudicial to petitioner).
Moreover, the jurors heard defense counsel argue during his summation that Peal's first mention of the knife occurred during trial. Trial Tr. at 399-400. They also were present when defense counsel informed the court that his cross-examination of Peal regarding the knife was pertinent to the read-back. Id. at 496. As Justice Kasler suggested, if the jury had questions concerning what Peal had said about the knife to the grand jury, a specific request would have been made. In light of the fact that the jurors did not request any additional testimony, one may infer that the jurors were satisfied with the testimony provided. It thus appears that the trial court properly evaluated the scope of the jury's request.
"`Whether to allow testimony to be reread to the jury is a matter committed to the sound discretion of the trial court. . . .'" United States v. Lester, 116 F.3d 466, 1997 WL 3210809, at*4 (2d Cir. June 13, 1997) (quoting United States v. McElroy, 910 F.2d 1016, 1026 (2d Cir. 1990)). The trial judge does not abuse that discretion by restricting the testimony read back to that which is responsive to the jury's request. United States v. Salameh, 152 F.3d 88, 133(2d Cir. 1998), cert. denied, 526 U.S. 1028 (1999). Here, the record shows that Justice Kasler questioned the jury in order to verify the testimony that it wanted, and the testimony read back was responsive to the jury's inquiry. See Trial Tr. at 496. Plainly, there was no abuse of discretion in this case. See McElroy, 910 F.2d at 1026. Moreover, the court's failure to expand such testimony beyond that requested by the jury did not prejudice Flax's defense so as to cast doubt on the fairness of his trial. Therefore, Flax is not entitled to habeas relief on this ground.
c. Erroneous Jury Instruction on Reasonable Doubt
Flax objects to the trial court's instruction to the jury on reasonable doubt. In particular, he criticizes the following portion of the charge:
If after considering the evidence in this case, you find it equally susceptible of two constructions, one pointing toward guilty, and the other pointing towards innocence, then you must give the defendant the benefit of the doubt and acquit. You must also acquit the defendant if after deliberation you find the evidence in the case evenly balanced, for in this case, the prosecution would not have met the burden imposed by law.
Trial Tr. at 469-70. Flax argues that the charge improperly implies that the prosecution's burden is less than "beyond a reasonable doubt." The "equally susceptible" and "evenly balanced" language in this charge is similar to the "wavering minds" and "even scales" terminology which has engendered criticism among some courts. Like the "two-inference" language of which the Second Circuit disapproved in United States v. Khan, 821 F.2d 90, 93 (2d Cir. 1987), it "arguably does not go far enough in instructing the jury on how to decide when the inference of guilty is stronger than the inference of innocence, but not strong enough to be beyond a reasonable doubt." Negron v. Sullivan, 1989 WL 35931, at * 4 (E.D.N.Y. Apr. 10, 1989), aff'd, 891 F.3d 278 (2d Cir. 1989). Despite the misleading "two-inference" language, the Second Circuit in Khan found upon review of the charge in its entirety that the court "fairly conveyed to the jury the concept of proof beyond a reasonable doubt . . .[and] thus, the court's charge, taken as a whole, properly instructed the jury on reasonable doubt." Khan, 821 F.2d at 92.
When determining if a constitutional right has been violated by a jury instruction, the reviewing court is not to view the challenged instruction in isolation. Cupp v. Naughten, 414 U.S. 141, 146-47 (1973) (It is a "well-established proposition that a single instruction to a jury must be viewed in the context of the overall charge."); accord Pinto v. Stinson, 129 F.3d 114, 1997 WL 664866 at *1 (2d Cir. Oct. 21, 1997), cert. denied, 522 U.S. 1131 (1998); Chalmers v. Mitchell, 73 F.3d 1262, 1268 (2d Cir.), cert. denied, 519 U.S. 834 (1996). The inquiry is "`whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle v. McGuire, 502 U.S. 62, 72, n. 4 (1991) (quoting Boyde v. California, 494 U.S. 370, 380 (1990)). "[W]here the jury instructions taken as a whole clearly instruct that the burden is on the government and that the defendant is never required to prove his innocence, the charge as a whole will not be held to be erroneous." Mason v. Schriver, 14 F. Supp.2d 321, 330 (S.D.N.Y. 1998) (citing Vargas v. Keane, 86 F.3d 1273, 1276-79 (2d Cir.), cert. denied, 519 U.S. 895 (1996); Chalmers, 73 F.3d at 1268; United States v. Davis, 328 F.2d 864, 867-68 (2d Cir. 1964)).
Even assuming that the trial court's language viewed in isolation was inappropriate in this case, when placed in context and considered along with the rest of the charge, it is clear that the jury could not have understood the People's burden to be anything other than proof beyond a reasonable doubt. See Canargo v. Bara, 1990 WL 26921, at* 3 (S.D.N.Y. Mar. 5, 1990) (citing United States v. Attanasio, 870 F.2d 809, 818 (2d Cir. 1989)); Rivera v. Smith, 544 F. Supp. 12, 14 (S.D.N.Y. 1982). At the commencement of the trial, and again at the beginning of his charge on reasonable doubt, Justice Kasler instructed the jury that
[o]ur law surrounds this Defendant, and all Defendants with well-known safeguards which must be respected by you as jurors, and by me as a Judge. The first of these safeguards is the presumption of innocence. The Defendant is never required to prove his innocence. On the contrary, the presumption of innocence vests with the Defendant from the beginning of this trial, and remains with him until such time, when in the deliberation room you are convinced, if you are convinced, that the People have proven his guilt beyond a reasonable doubt. The People, having accused this Defendant of the crimes charged, have the burden of proving his guilt beyond a reasonable doubt. The Defendant is under no obligation to disprove it, or to prove his innocence. This burden of proof extends to each and every element charged, and rests with the People throughout the trial, and it remains with them, and never shifts to the Defendant. If in your mind the People have not borne the burden of proof, and the presumption of innocence is not destroyed by proof which convinces you beyond a reasonable doubt, of course, you will find the Defendant not guilty.
Trial Tr. at 18-19; 466-68 (emphasis supplied). In the foregoing portion of the charge, Justice Kasler informed the jury numerous times that the prosecution alone bore the burden of proof beyond a reasonable doubt and that the defendant was not required to prove his innocence. In addition, when explaining the individual elements of the offenses, the trial court emphasized that the People were required to prove each and every element beyond a reasonable doubt. See id. at 455-466.
The two sentences to which Flax objects came after a traditional explanation of what did and did not constitute reasonable doubt. See id. at 468-69. Just prior to the objectionable language, Justice Kasler reiterated that if the People failed to establish guilt beyond a reasonable doubt, the jury must acquit. Id. at 469. The trial court told the jury again, when explaining the defendant's right not to testify, that "[i]t is the prosecution which must prove him guilty, and he cannot be required to disprove anything," and further reiterated that the People had the burden of proving guilt beyond a reasonable doubt. Id. at 472. Finally, the trial court instructed the jury that "identification of the defendant as the person who committed the actions charged must be established . . . beyond a reasonable doubt," and if the jury had a "reasonable doubt whether the defendant is the one who committed the crime, [the jury] must find him not guilty. Id. at 476, 478. The charge, rather than overstating the degree of doubt necessary for acquittal, made clear that a reasonable doubt must "aris[e] from the evidence, or the lack of evidence," and not be based on "a mere whim" or a "fancy." Id. at 468. Such a charge is considered proper. Fluellen v. Walker, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002) (citing Victor v. Nebraska, 511 U.S. 1, 19-20 (1994)), cert. denied, — U.S. —, 123 S.Ct. 1787 (2003)).
Significantly, other courts have denied federal habeas relief where a trial court charged the jury with "even scales" language. Negron, 1989 WL 35931, at *5 (remainder of charge "negate[d] any implication from the complained-of `minds are wavering' language that the prosecution's burden might be less than proof beyond a reasonable doubt"); Canargo, 1990 WL 26921, at *3-4; Trinidad v. Senkowski, 1991 WL60418, at *4(S.D.N.Y. Apr. 11, 1991) ("By repeatedly stating that the State had the unequivocal burden of proving [petitioner] guilty beyond a reasonable doubt, the judge rehabilitated any minimal prejudice that might have existed[.]"); see also DeLaHoz v. Scully, 1989 WL 151230, at *3 (S.D.N.Y. Dec. 6, 1989) (For the court to have explained that "if [the jurors'] minds are wavering . . . the benefit of the doubt must be given to the defendant . . . cannot be held to have deprived the petitioner of a fair trial.")
Flax also objects to the following sentence from the reasonable doubt jury charge: [i]t [ i.e., a reasonable doubt] is a doubt for which some good reason can be given, arising from the evidence, or the lack of evidence. Trial Tr. at 468.
Although some Second Circuit decisions have held that jury instructions that state or imply that jurors should be able to articulate a reason for their doubts are "not approved" and perhaps are "unwise," the Second Circuit also has said that such an instruction does not violate due process. Chalmers, 73 F.3d at 1268 (instruction defining reasonable doubt, in part, as "a doubt for which some good reason can be given" did not impermissibly alter the burden of proof); see also Pinto, 129 F.3d 114, 1997 WL 664866, at *1. Moreover, the Supreme Court has never held that such an instruction is, in itself, violative of Due Process. See Taylor v. Kentucky, 436 U.S. 478, 488 (1978) ("|T]hough perhaps not in itself reversible error," a state court's definition of reasonable doubt as "`a substantial doubt, a real doubt'" "often has been criticized as confusing.") (citing circuit cases).
The Court concludes similarly here. Read in its entirety, the jury charge properly defines the concept of reasonable doubt and explains the burden of proof. By reiterating numerous times that the People had the burden of proving Flax guilty beyond a reasonable doubt, the judge negated any implication that the "evenly balanced" language and "good reason" requirement placed a lesser burden of proof upon the state. See Trinidad, 1991 WL 60418, at *4; Pinto, 129 F.3d 114, 1997 WL 6646866, at *1 (instruction equating reasonable doubt, in part, with a "doubt for which you can give a substantial reason," while problematic, did not unconstitutionally lower burden of proof.). The Court cannot say that "viewed in the context of the overall charge," Cupp, 414 U.S. at 147, "`there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." Estelle, 502 U.S. 62, 72 (quoting Boyde, 494 U.S. 370, 380). Considered as a whole, the instruction cures the error, if any, in the portions challenged by Flax's habeas corpus petition. Thus, the trial court's reasonable doubt charge is in accord with due process constraints.
d. Failure to Order Competency Hearing Sua Sponte
Flax contends that the trial court abused its discretion in failing to hold a hearing, sua sponte, to determine his "competency to stand trial." Pet'n at 6. The petition's articulation of this claim is misleading to the extent that a competency hearing was held, at the request of defense counsel, prior to trial. On direct appeal, Flax did not contest the initial determination that he was competent. See Pet. App. Br. at 32, Resp. Ex. B. Rather, he challenged, as he challenges now, the court's failure to determine his competency for a second time following his conviction and before sentencing. See id. Respondent claims that the pre-sentence report contained information about Flax's psychiatric history which was already known at time of the earlier examinations to determine his competency, and therefore provided no basis for questioning petitioner's competency for sentencing purposes. See Resp. Habeas Br. at 23.
On October 6, 1987, an order of examination was entered pursuant to C.P.L. § 730.30 to determine whether Flax was an "incapacitated person" and therefore unable to stand trial. Respondent's Appellate Division Brief ("Resp. App. Br.") at 41, Resp. Ex. B. Dr. Joseph Liebergall, a certified psychologist, and Dr. Brian Joseph, a psychiatrist, examined Flax and determined that he "did not, as a result of a mental disease or defect, lack the capacity to understand the proceedings against him or to assist in his defense." Id. (citing "Examination Reports filed separately").
"Due process requires that a hearing must be held whenever the facts or events presented to the trial court raise a bona fide doubt as to a defendant's competency." Chisolm v. People of the State of New York, 182 F.3d 989, 1999 WL 385764 at * 2 (2d Cir. June 4, 1999) (citing Pate v. Robinson, 383 U.S. 375 (1966)), cert. denied, 528 U.S. 971 (1999). The Supreme Court has defined competency by asking "whether the [defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him." Dusky v. United States, 362 U.S. 402, 402 (1960). A hearing is not required, however, in the absence of reasonable cause to question a defendant's competency. See, e.g., United States v. Kirsh, 54 F.3d 1062, 1070 (2d Cir.) (citing Pate, 383 U.S. at 385-86), cert. denied, 516 U.S. 927 (1995).
The determination as to whether there is reasonable cause to doubt a defendant's fitness to stand trial is vested in the discretion of the trial judge. See, e.g., United States v. Nichols, 56 F.3d 403, 414 (2d Cir. 1995) (citing Drope v. Missouri, 420 U.S. 162, 180 (1975)). This finding has generally been held to be a factual issue, entitled to deference by a federal habeas court. Francis S. v. Stone, 221 F.3d 100, 114 (2d Cir. 2000) (citing Maggio v. Fulford, 462 U.S. 111, 117 (1983)). Although there are no firm guidelines for determining when a hearing is necessary, a trial court should consider factors such as evidence of irrational behavior, the defendant's demeanor at trial, medical opinions, and the opinion of defense counsel. See Drope, 420 U.S. at 177 n. 13. Even when a defendant is deemed competent at the beginning of the case, a trial court must be alert to circumstances pointing to any changes that would render the defendant unable to meet the standards of competence to stand trial. Drope 420 U.S. at 182.
Prior to trial, two psychiatrists confirmed that Flax was capable of participating in his defense and therefore competent to stand trial. Cf. Chisolm 1999 WL 385764 at * 2 (rejecting claim that state trial court should have sua sponte ordered a full hearing with witnesses to determine whether petitioner was competent where "the unanimity of the psychiatric opinion developed after the court ordered an inquiry into petitioner's state of mind belie[d] petitioner's contention that there was any bona fide doubt about his competency.").
The record gives no indication that Flax was irrational or incoherent on any occasion that he appeared before the trial court. Since no factors arose during trial that would have called Flax's competency into doubt, the trial judge would have detected no basis upon which to question, again, Flax's competence to participate in the proceedings. Furthermore, neither Flax nor his attorney raised any question concerning Flax's competency during trial. See Davis v. Keane, 2001 WL 13288, at * 3 (E.D.N.Y. Jan. 4, 2001) (citing Drope, 420 U.S. at 177 n. 13; 180), aff'd 45 Fed. Appx. 31, 2002 WL 2009559 (2d Cir. Sept. 3, 2002).
In his brief to the Appellate Division, Flax cites to the pre-sentence report which allegedly states that Flax has suffered from mental instability "for most of his life" and has been "prone to violence" and "unreliable and uncooperative" with authority figures. Pet. App. Br. at 34, Resp. Ex. B. The brief also refers to an excerpt in the pre-sentence report regarding an examination of Flax by Dr. Liebergall in December 1986, at which time Dr. Liebergall allegedly opined that Flax suffers from "deeply ingrained character problems," "might even suffer from a Schizo-Effective Disorder," and should receive medical treatment. Id. at 35-36. However, a defendant's history of mental impairment alone does not require the trial court sua sponte to order a competency hearing. Cf., e.g., Atkins v. Virginia, 536 U.S. 304, 318 (2002) ("Mentally retarded persons frequently know the difference between right and wrong and are competent to stand trial.hellip; Their deficiencies do not warrant an exemption from criminal sanctions[.]"); Lopez v. Walker, 239 F. Supp.2d 368, 374 (S.D.N.Y. 2003) (pre-sentence report referred to prior suicide attempts, hospitalization, and the use of the drug Sinequan, and stated that evaluation of petitioner's "present emotional functioning" would be "appropriate" in light of his claim of a prior psychiatric history; however, this evidence alone did not require trial court to make further inquiry into petitioner's competency).
It appears that Flax's pre-sentence report was before the Appellate Division on Flax's direct appeal, since appellate counsel provided citations to the pre-sentence report in the brief. See Pet. App. Div. Br. at 32-36, Resp. Ex. B. However, the pre-sentence report apparently was submitted separately since it was not part of the record on appeal. Respondent also submitted to the Appellate Division, under separate cover, copies of the examination reports completed by Dr. Joseph and Dr. Liebergall, along with letters from each of those doctors. See Resp. App. Br. at 41-42 (referring to examination reports, "letter from Dr. Joseph," and "letter from Dr. Liebergall," all of which were "filed separately" with the court), Resp. Ex. B. This Court did not have the pre-sentence report before it on habeas review. Efforts to obtain the report from respondent were unfruitful since the report is confidential and is re-filed in the probation office following sentencing.
Despite these purported observations by Dr. Liebergall, Flax's brief cites nothing in the pre-sentence report to indicate that he was incapable of understanding the criminal proceedings in which he was involved. See Pet. App. Br. at 35-36, Resp. Ex. B; cf. Davis, 2001 WL 13288, at *3. Moreover, Flax did not assert that the pre-sentence report refers to any changes in his mental health status occurring after the October 1987 examinations that would warrant a new hearing on his competency. See Pet. App. Br. at 35-36, Resp. Ex. B; cf. Davis, 2001 WL 13288, at *3.
At sentencing, defense counsel called the court's attention to the contents of the pre-sentence report as a basis for leniency in sentencing. See Transcript of Motion and Sentence ("Sentencing Tr.") at 9. In particular, counsel noted that Flax had led a "troubled life" and had "limitations as far as schooling." Id. at 9-10. When invited to address the court prior to sentencing, Flax refused to speak except to maintain that he was innocent. Id. at 10. Even after reviewing the contents of the pre-sentence report and observing Flax's demeanor, the trial judge discerned no basis to question Flax's competency. Importantly, defense counsel did not register a concern about Flax's competency at that time.
With this record before it, the Appellate Division presumably found no basis to question Flax's competency during the sentencing phase of his criminal trial. In rejecting Flax's claim that the trial court abused its discretion in failing to order a second competency examination as without merit, the Appellate Division did not unreasonably apply clearly established Federal law. As the discussion above makes clear, there is no basis to conclude that the Appellate Division's decision was objectively unreasonable. See 28 U.S.C. § 2254(d)(1); see also Davis,, 2001 WL 13288, at *4 (citing Silverstein v. Henderson, 706 F.2d 361, 367 (2d Cir. 1983) ("New York law provides the procedural protection Pate requires.")); Dusky, 362 U.S. at 402.
e. Cumulative Trial Error
Flax contends that the cumulative effect of the trial court's errors warrants a reversal of his conviction. Habeas relief may be justified on the cumulative effect of errors that, standing alone, would not entitle a petitioner to a new trial. See United States v. Lumpkin, 192 F.3d 280, 290 (2d Cir. 1999). Implicit in such a claim, however, is a finding that the alleged individual errors sought to be aggregated are in fact errors. See id. (denying cumulative effect claim because the "accumulation of non-errors does not warrant a new trial."); see also United States v. Hurtado, 47 F.3d 577, 586 (2d Cir.) (rejecting claim that the collective effect of alleged errors warranted a new trial where the trial court committed only one error, which was not sufficient on its own to warrant a new trial), cert. denied, 516 U.S. 903 (1995); Sanders v. Sullivan, 701 F. Supp. 1008, 1013 (S.D.N.Y. 1988) ("[t]he cumulative-error rule . . . can only come into play after errors have been discovered"), rev'd on other grounds, 900 F.2d 601 (2d Cir. 1990).
Here, after considering the merits of Flax's claims, this Court has not found that any of the asserted errors were actually errors at all. Morever, Flax has not demonstrated that the alleged errors prejudiced his case to the point that his trial was rendered "fundamentally unfair." See Collins v. Scully, 878 F. Supp. 452, 460-61 (E.D.N.Y. 1995) (rejecting cumulative error claim where some alleged errors were not errors and petitioner "failed to establish inherent or actual prejudice resulting from the alleged errors"); Joyner v. Miller, 2002 WL 1023141, at* 13 (S.D.N.Y. Jan. 7, 2002) (same). Accordingly, Flax is not entitled to habeas relief on his claim of cumulative trial error.
5. Sufficiency of the Evidence a. The Identification Evidence Was Insufficient
Flax argues in his petition that the "identification evidence [in the Peal case] was insufficient as a matter of law." Pet'n at 6a. A petitioner "bears a Very heavy burden' in convincing a federal habeas court to grant a petition on the grounds of insufficient evidence." Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (citations omitted). The habeas court's inquiry is "whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, [the court] must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor." United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108(1983).
The habeas court's review of the jury's findings is limited, and a federal court will not grant habeas relief if "after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 318-19 (1979) (citations omitted) (emphasis in original). "This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable facts from basic facts to ultimate facts." Id. at 319.
The Court has reviewed the record in this case and finds that it supports the verdict convicting Flax of the Peal rape. Here, Flax does not deny that the People presented sufficient evidence to prove the charged offense, that is, he does not deny that Peal was raped. Flax merely challenges the evidence pertaining to her identification of him as the assailant. In support of his claim, Flax cites Peal's testimony that "she never got a good look at her assailant's face, and that the only time she faced him, it was so dark she could not see [his] features." Pet'n at 6a.
Peal, however, identified Flax primarily by his voice. On the day of the rape, Peal saw Flax at a tavern where she had stopped on her way to the store. Trial Tr. at 54. Minutes after she left the bar, she was grabbed from behind and was told not to scream. Id. Peal testified that when her assailant spoke, she recognized his voice as Flax's. Id. at 56. Although Peal could not recall specifically what he said, she testified that her assailant talked to her throughout the attack, giving her further opportunity to identify his voice. Id. at 57-58; 107-108. Peal was familiar with Flax's voice, testifying that she had heard it many times in the past. Id. at 108. She had known Flax (who was a friend of her boyfriend at that time) for about three or four months prior to her attack in June 1987. Id. at 50. Flax stopped by their house regularly, about three or four times a week, and would talk to Peal on those occasions. Id. at 50-51.
Peal admitted that the house where she was raped was too dark for her to see her assailant's features. However, Peal testified that she followed her attacker as he was fleeing the house and saw him run into a grocery store parking lot. Id. at 110-11. She was able to see the man's profile, and she recognized him to be Flax. Id. at Ill.
To bolster his argument, Flax asserts that although Peal claimed that she knew him, she did not tell the police that he was her assailant until he was arrested, five days after the incident. Contrary to Flax's assertion, Peal did identify him to the police on the night of the rape. Peal did not know Flax's full name, but she was able to provide the nickname "Nuke" and a physical description of him. Id. at 120-21. She also directed the police to a house where Flax was supposed to be known. Id. at 120.
Moreover, the identification made by Peal was corroborated by statements made by Flax himself. When Peal confronted Flax five days after the incident, he "started screaming" at her. Id. at 64. Flax called her "a liar" and said she was "going around telling people that he raped [her]." He also stated that she "gave it to him." Id. Flax's admission that he had sexual intercourse with Peal undermines his contention that the identification was not proven in this case. It is also significant that a prosecutor's burden is to prove a defendant guilty beyond a reasonable doubt, not beyond all doubt. See In re Winship, 397 U.S. 358, 361-64 (1970); C.P.L. § 70.20. Viewing the evidence under the standard enunciated in Jackson v. Virginia, 443 U.S. 307, the Court cannot say that no rational trier of fact could have found Flax guilty beyond a reasonable doubt for the Peal rape. b. The Identification Procedure Was Unduly Suggestive
The admission of identification evidence violates the Due Process Clause of the Fourteenth Amendment if "under all the circumstances of [the] case there is `a very substantial likelihood of irreparable misidentification.'" Manson v. Brathwaite, 432 U.S. 98, 116 (1977) (citation omitted); see also Dunnigan v. Keane, 137 F.3d 117, 128 (2d Cir. 1998)). In order to determine whether identification testimony is constitutionally valid, the court first must determine whether the procedure by which the initial identification was obtained was impermissibly suggestive. United States v. Wong, 40 F.3d 1347, 1359 (2d Cir. 1994), cert. denied, 516 U.S. 870 (1995). If it was, the admission of the evidence nevertheless will satisfy constitutional standards if the identification was independently reliable. Dunnigan, 137 F.3d at 128; Wong, 40 F.3d at 1359. In this case, there was no substantial likelihood of misidentification.
Peal testified that she called the police after spotting Flax at a local bar several days after the rape. Trial Tr. at 64-65. She and Flax argued, and Flax eventually left the bar. Id. at 66-67. A friend of Peal's was with her that evening when she saw Flax. Id. at 67. Peal testified that as she was riding with the officers in the patrol car looking for Flax, she saw him sitting on the front porch of a house. At that time she pointed him out to the police as her attacker. Id. at 66-68.
On cross-examination, Officer Segars, the arresting officer, testified that Peal did not identify Flax while he was on the porch. Id. at 148. According to Officer Segars, Peal's friend approached the car as they were looking for Flax and directed them in the vicinity of the house where Flax was eventually arrested. Id. at 144. The officer testified that they proceeded in that direction and subsequently saw an individual matching the physical description given by Peal. Id. at 144; 148. Officer Segars testified that he went up to the porch, arrested Flax and placed him in handcuffs. Id. at 146-47. He stated that he did not ask Peal to identify petitioner until another patrol car arrived. Id. at 147. When Peal identified Flax, he was handcuffed and standing next to Officer Segars, who was in uniform. Id. at 148. None of these factors, however, made the identification process impermissibly suggestive.
Neither the presence of police officers nor indications that the person is in police custody renders the identification improper. See, e.g., United States v. Bautista, 23 F.3d 726, 730 (2d Cir.), cert. denied, 513 U.S. 862 (1994) (identification of a handcuffed defendant illuminated by police officers' flashlights not "unnecessarily suggestive"); United States v. Ortiz, 2000 WL 37998, at *1 (S.D.N.Y. Jan. 18, 2000) (identification not unduly suggestive where defendants were handcuffed, standing beside a marked police car, and accompanied by uniformed police officers); Torrez v. Sabourin, 2001 WL 401444, at *5 (S.D.N.Y. April 19, 2001) (identification not unduly suggestive where complainant identified defendant while he was on his hands and knees surrounded by police officers and patrol cars).
Moreover, even if the identification process had been unduly suggestive, the record amply supports a finding that the in-court identification of the petitioner was independently reliable. See Wong, 40 F.3d at 1359. Inthiscase, Peal knew Flax well prior to the assault, having seen him on a regular basis over a period of several months. Accordingly, Flax's challenge to the identification procedure is without merit.
CONCLUSION
For the foregoing reasons, Newnon Flax's application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety, and the petition is dismissed. Further, because Flax has failed to make a substantial showing of a denial of a constitutional right, the Court declines to issue a certificate of appealability. 28 U.S.C. § 2253.IT IS SO ORDERED.