Opinion
98 Civ. 4566 (DAB)(JCF).
November 17, 2000.
REPORT AND RECOMMENDATION
Travis Foy brings this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction for robbery in the first degree following a jury trial in New York State Supreme Court, New York County. Mr. Foy argues that his conviction should be overturned because he was deprived of his due process right to a fair trial and his right to effective assistance of counsel as a result of: (1) the court's holding a pretrial hearing outside his presence; (2) trial counsel's unilateral waiver of his right to appear before the grand jury; and (3) appellate counsel's poor performance in drafting a brief. The respondent contents that Mr. Foy's claims are time-barred, unexhausted, and, in any event, without merit. For the reasons set forth below, I recommend that the petition be denied.
Background
On December 3, 1991, at approximately 1:00 a.m. Jose Gonzalez was driving home after concluding his shift as a livery cab driver in the Bronx. (Tr. at 193-94). While Mr. Gonzalez was stopped at a traffic light at the intersection of 161st Street and Grand Concourse, Travis Foy entered the back seat and asked Mr. Gonzalez to take him to Manhattan. (Tr. at 193-94). When Mr. Gonzalez initially refused, Mr. Foy pleaded with him, and Mr. Gonzalez finally agreed. (Tr. at 194).
"Tr." refers to the trial transcript.
As they approached the intersection of 132nd Street and Lenox Avenue, Mr. Foy asked Mr. Gonzalez to stop and, when he did, Mr. Foy immediately struck him in the head. (Tr. at 194). At the same time, two other men entered the car. (Tr. at 194). One of these men, Travis Foy's uncle Johnson Foy, also hit Mr. Gonzalez while Travis Foy pulled out a knife and held it to Mr. Gonzalez's throat, saying "give me all of the money you have." (Tr. at 195). Travis Foy continued to demand money even after Mr. Gonzalez indicated that he had surrendered everything he had. (Tr. at 195). At that point, Mr. Gonzalez bit down on Travis Foy's hand. Travis Foy then dropped the knife and Mr. Gonzalez attempted to flee, but Johnson Foy exited the car and started hitting Mr. Gonzalez while Travis Foy held him by the jacket. (Tr. at 195-97).
Travis Foy then also exited the cab and hit Mr. Gonzalez in the jaw with an object, knocking him down. (Tr. at 197). Both Johnson Foy and Travis Foy continued to beat Mr. Gonzalez while he was on the ground, taking all of the contents of his pockets. (Tr. at 199). The third person was not involved in the attack and ran into a building nearby while Travis Foy and Johnson Foy got into Mr. Gonzalez's cab. (Tr. at 199).
The third man's name does not appear in the trial transcript.
As Mr. Gonzalez attempted to chase after his car, Police Officer Neil Nappi saw him and offered assistance. (Tr. at 202, 277). Mr. Gonzalez entered the officer's car and explained the incident. Officer Nappi then broadcast the information over his police radio. (Tr. at 203, 277-79).
Police Officer Ronald Frische was on patrol in a marked car with his partner, Officer Richard Kershow, when they received a radio report that a blue four-door Oldsmobile had just been stolen in a robbery. (Tr. at 278-79, 326-27). Soon thereafter, the officers saw a vehicle matching the description of the stolen car traveling at a high rate of speed eastbound on West 145th Street onto the northbound lanes of Seventh Avenue. (Tr. at 328).
Officer Frische pulled up nose-to-nose with the Oldsmobile, facing southbound on Seventh Avenue. (Tr. at 329). Officer Nappi's car, with Mr. Gonzalez still in the back seat, arrived while Officer Frische and his partner were in the process of arresting Travis Foy and Johnson Foy. (Tr. at 279-80, 329-33). As Officer Frische was handcuffing Travis Foy, Mr. Gonzalez exited Officer Nappi's car and stabbed Travis Foy on the left side of his face with a screwdriver. (Tr. at 330-32). Mr. Gonzalez and Travis Foy were immediately separated, and Mr. Gonzalez was arrested as well. (Tr. at 332, 337).
A dry cleaning ticket bearing Jose Gonzalez's name was found in Johnson Foy's jacket during a search, and thirty-seven one dollar bills were discovered on Travis Foy. (Tr. at 336-37). Officer Frische also discovered a kitchen knife and a wallet containing Mr. Gonzalez's resident alien card while searching Mr. Gonzalez's Oldsmobile. (Tr. at 335).
On November 11, 1992, Travis Foy was found guilty of robbery in the first degree and was sentenced to a term of imprisonment of eleven and one-half to twenty-three years. (Petitioner's Reply Memorandum of Law ("Pet. Reply") at 2). The court ordered this sentence to run concurrently with a sentence of four to eight years, imposed after Travis Foy pleaded guilty to earlier robberies. (Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus ("Resp. Memo.") at 4; Pet. Reply at 2). The Appellate Division, First Department affirmed Travis Foy's conviction on February 21, 1995. People v. Foy, 212 A.D.2d 446, 622 N.Y.S.2d 937 (1st Dep't 1995). Leave to appeal to the Court of Appeals was denied on April 19, 1995. People v. Foy, 85 N.Y.2d 938, 627 N.Y.S.2d 1000 (1995).
On March 13, 1995, Mr. Foy made a collateral motion pursuant to New York Criminal Procedure Law ("CPL") § 440.10 in which he argued that his conviction should be vacated because of ineffective assistance of trial counsel. (Pet. Reply, Exh. J ("First § 440.10 Motion")). The Supreme Court denied this motion on May 11, 1995 (Pet. Reply, Exh. K), and the Appellate Division denied petitioner's application for leave to appeal on June 15, 1995. (Pet. Reply, Exh. M).
On January 10, 1996, the petitioner applied for a writ of error coram nobis arguing for a reversal of his conviction because he received ineffective assistance of appellate counsel and because the trial court failed to investigate a potential conflict of interest on the part of his trial counsel. (Pet. Reply, Exh. N ("First Coram Nobis Aff.")). The Appellate Division denied the application on June 27, 1996. (Pet. Reply, Exh. O). Mr. Foy moved to reargue, but that motion was denied on November 14, 1996 (Pet. Reply, Exh. Q), and the petitioner's appeal from that decision was dismissed on February, 11, 1997. (Affidavit of Tiffany M. Foo dated Dec. 11, 1998, Exh. D).
On January 15, 1997, Mr. Foy filed a second § 440.10 motion, in which he argued that his conviction should be vacated because the trial court had held a Sandoval hearing off the record and outside of his presence. (Pet. Reply, Exh. R ("Second § 440.10 Motion")). The Supreme Court denied this motion on March 20, 1997 (Pet. Reply, Exh. T), and leave to appeal was denied on May 2, 1997. (Pet. Reply, Exh. U).
At a Sandoval hearing, the court determines the admissibility of evidence of prior convictions in the event that the criminal defendant testifies at trial. See People v. Sandoval, 34 N.Y.2d 371, 374, 357 N.Y.S.2d 849, 853 (1974).
On May 23, 1997, the petitioner applied for another writ of error coram nobis. (Pet. Reply, Exh. V ("Second Coram Nobis Aff.")). In that application, Mr. Foy once again raised the claims of deprivation of due process at the Sandoval hearing and ineffective assistance of appellate counsel. (Second Coram Nobis Aff. at 5, 12). He also argued that his Fifth Amendment right to a fair trial had been denied because the trial court "constructive[ly] amend[ed] . . . the indictment" and allowed the jury to consider a theory not advanced by the prosecution. (Second Coram Nobis Aff. at 8-9). The Appellate Division denied the petitioner's application on September 16, 1997. (Pet. Reply, Exh. W).
Discussion
A. Statute of Limitations
The respondent argues that Travis Foy's habeas corpus petition is time-barred. The Anti-Terrorism and
Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. 104-132, 110 Stat. 1214, imposes a one-year period of limitations for habeas corpus petitions, running from the later of:
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244(d)(1). The AEDPA further provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection."
Mr. Foy's conviction became final on April 19, 1995, before the AEDPA's effective date of April 24, 1996. While the AEDPA does not specify what limitations period applies to prisoners whose convictions became final prior to its enactment, the Second Circuit has held that inmates in this category have a one-year grace period in which to file a habeas corpus petition. Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
The petitioner filed his application for a writ of habeas corpus on April 20, 1998, 361 days after the one-year grace period had expired. However, the AEDPA's tolling provision applies to both the statute of limitations and the one-year grace period. See Bennett v. Artuz, 199 F.3d 116, 119 (2d Cir. 1999) (holding that the "AEDPA's pending-state-petition tolling provision does apply to a petition challenging a pre-AEDPA conviction"), aff'd on other grounds, No. 99-1238, 2000 WL 1663653 (U.S. Nov. 7, 2000). Here, three of petitioner's four motions for collateral review of his conviction were pending during the one-year grace period. Therefore, these motions must have tolled the statute of limitations for at least 361 days for Mr. Foy's petition to be timely.
There is some uncertainty as to exact date on which Mr. Foy filed his petition. The petitioner claims it was April 7, 1998. (Pet. Reply at 6). The respondent contends that April 20 is the correct date. (Respondent's Supplemental Memorandum of Law in Opposition to Petitioner's Application for a Writ of Habeas Corpus ("Resp. Supp. Memo.") at 8). The dispute is immaterial in light of the analysis below, so I will adopt the respondent's date for the sake of convenience.
The petitioner first applied for writ of error coram nobis on January 10, 1996, and the writ was denied on June 27, 1996. Mr. Foy moved to reargue, but that motion was denied on November 14, 1996. Therefore, this proceeding tolled the one-year grace period for 204 days, excluding the time this motion had been pending prior to the AEDPA's enactment. Next, the petitioner made his second CPL § 440.10 motion on January 15, 1997, and it was finally disposed of on May 2, 1997. Thus, this motion tolled the one-year grace period for an additional 108 days, excluding the period during which it overlapped with the first application for a writ of error coram nobis. Finally, petitioner's second application for writ of error coram nobis — made on May 23, 1997 and denied on September 16, 1997 — tolled the grace period for 116 days. Together, these motions require tolling for a total of 428 days, more than enough to make Mr. Foy's petition timely.
The petitioner may also be entitled to tolling from the date his motion to reargue was denied until his appeal from that decision was dismissed. However, because it is unclear under state law whether the petitioner could seek leave to appeal from such a determination, I will not include that period in my calculations.
The respondent claims that the petitioner's second application for a writ of error coram nobis and second CPL § 440.10 motion were filed after the time to file a habeas corpus petition expired and, therefore, cannot toll the one-year grace period. (Resp. Supp. Memo. at 8). The respondent relies on Smith v. McGinnis, 208 F.3d 13 (2d Cir.), cert. denied,___ U.S.___, 121 S.Ct. 104 (2000), in which the Second Circuit held that proper calculation of the AEDPA's tolling provision "excludes time during which properly filed state relief applications are pending but does not reset the date from which the one-year [grace period] . . . begins to run." Id. at 17. However, the sequence of events in the Smith case is readily distinguishable from the facts here.
In Smith, the petitioner's application for a writ of error coram nobis, filed one day before the one-year grace period was set to expire, was subsequently denied by the state court. Smith, 208 F.3d at 16. Smith filed his habeas corpus petition 86 days after the denial of that application and argued that the one-year grace period should be reset from the date the state court denied a properly filed motion for collateral review. Id. The Court rejected this contention, reasoning that "[i]f the one-year period began anew when the state court denied collateral relief, then state prisoners could extend or manipulate the deadline for federal habeas review by filing additional petitions in state court."Id. at 17.
In this case, the petitioner's successive applications for collateral review in the state courts tolled much of the one-year grace period, and, therefore, Travis Foy need not rely on the "resetting-the-clock" argument that the Smith court found unpersuasive. Instead, his petition is timely under the simple arithmetic of the AEDPA's tolling provision.
B. Exhaustion of State Remedies
The respondent next argues that the petition should be denied because Travis Foy has failed to exhaust his state court remedies. (Resp. Memo. at 10). Exhaustion is necessary to preserve an issue for federal review.See 28 U.S.C. § 2254(b)-(c). The exhaustion doctrine requires that any constitutional claim first be "fairly presented to the state courts."Picard v. Connor, 404 U.S. 270, 275 (1971); see Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991). "In order to have fairly presented his federal claim to the state courts the petitioner must have informed the state court of both the factual and the legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc); see also Strogov v. Attorney General, 191 F.3d 188, 191 (2d Cir. 1999). A petitioner need not cite "book and verse on the federal constitution" to alert a state court to the federal nature of a legal claim; it is sufficient that the legal claims are "substantial[ly] equivalent." Picard, 404 U.S. at 278 (citations omitted); see Daye, 696 F.2d at 192.
Mr. Foy alerted the state courts to the federal dimension of all three claims he now asserts in his habeas petition. In his second application for writ of error coram nobis, the petitioner argued that his absence from the Sandoval hearing was a denial of due process under Fourteenth Amendment to the United States Constitution. (Second Coram Nobis Aff. at 5). In his first CPL § 440.10 motion, Mr. Foy claimed that trial counsel's ineffective assistance led to the denial of his right to testify in front of grand jury, which had "the effect of denying [the petitioner] his fundamental right to a fair trial." (First § 440.10 Motion at 3). Finally, the petitioner linked his ineffective assistance of appellate counsel claim to the Sixth Amendment right to counsel in both his first and second applications for a writ of error coram nobis. (First Coram Nobis Aff. at 4; Second Coram Nobis Aff. at 2, 13-14).
The respondent also contends that Mr. Foy failed to present one of his arguments to the state courts because he did not include it in the direct appeal of his conviction. (Resp. Memo. at 12). However, where the petitioner fails to use "all the appellate procedures of the convicting state to present his claim," he may nevertheless "utilize available state remedies for collateral attack of his conviction in order to satisfy the exhaustion requirement." Klein v. Harris, 667 F.2d 274, 282-83 (2d Cir. 1981) (citations omitted). Here, the petitioner included in his earlier motions for collateral review all of the claims he raises now and therefore has fairly presented his claims to the state courts.
Finally, the respondent implies that Mr. Foy must present his federal constitutional claims to the highest court of the state before a federal court may consider them. (Resp. Memo. at 12). See Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991). Yet, under CPL § 450.90, the petitioner cannot appeal an order denying a motion for leave to appeal to the Appellate Division. See People v. Williams, 342 N.Y.S.2d 75, 76 (2d Dep't 1973). Thus, "once the Appellate Division denie[s] [the petitioner] leave to appeal . . . he has reached the end of the road within the state system." Klein, 667 F.2d at 284 (internal quotations and citation omitted). Mr. Foy came to that dead end with respect to his grand jury and ineffective assistance of appellate counsel claims when the Appellate Division denied his requests for leave to appeal the denial of each of his § 440.10 motions, and the when Court of Appeals dismissed his appeal of the denial of his first application for a writ of error coram nobis.
The petitioner's claim relating to the Sandoval hearing remains unexhausted because Mr. Foy did not apply for leave to appeal the denial of his second writ of error coram nobis in which he raised that claim.See O'Sullivan v. Boerckel, 526 U.S. 838, 847 (1999) (in order to exhaust remedies, habeas petitioner must seek discretionary review where available). Nevertheless, a habeas petition "may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). Once a federal court finds that all the claims are "patently without merit," the court has discretion to dismiss the petition on its merits even though it may contain some unexhausted claims. See Colon v. Johnson, 19 F. Supp. 2 d 112, 120 (S.D.N.Y. 1998); see also Ojeda v. Artuz, No. 96 Civ. 5900, 1997 WL 283398, at *3 n. 5 (S.D.N.Y. May 29, 1997) (habeas petitions containing unexhausted but "patently frivolous" claims can be dismissed on merits). That is the case here.
C. Sandoval Hearing
Mr. Foy claims that he was deprived of due process when the trial court conducted his Sandoval hearing off the record and outside of his presence. The petitioner argues that although his trial counsel was present at the Sandoval hearing, he personally "could have potentially contributed to such hearing" when the Court discussed his "rap sheet." (Pet. Reply at 8).
A criminal defendant has a right to be present at all material stages of the trial, including any Sandoval hearing. See Almanzar v. Portuondo, No. CV-97-1859, 1999 WL 557517, at *6 (E.D.N.Y. July 29, 1999); People v. Dokes, 79 N.Y.2d 656, 662, 584 N.Y.S.2d 761, 765 (1992); see generally Kentucky v Stincer, 482 U.S. 730, 745-46 (1987) (defining material stages of trial). However, when there is no evidence that a defendant "could have done anything had he been at the hearing nor would have gained anything by attending," his due process rights are not violated because his presence would have been superfluous. See Almanzar, 1999 WL 557517, at *6 (quoting Stincer, 482 U.S. at 747).
In this case, the scant record of the Sandoval-type discussion indicates only that, had the petitioner decided to testify, the judge would have admitted into evidence his three prior felony convictions and one previous misdemeanor conviction. (Tr. at 2-4). Mr. Foy's general allegations that he could have contributed to the Sandoval hearing do not provide any concrete basis for assessing whether his presence at the hearing would have been useful. See id. at *7. Accordingly, this claim fails on the merits.
D. Grand Jury Proceedings
The petitioner next contends that his rights to effective assistance of counsel and due process were abridged because his trial attorney withdrew his grand jury notice without consulting him, effectively waiving Mr. Foy's right to appear before the grand jury.
To establish a violation of the Sixth Amendment right to counsel, the petitioner must "(1) show that counsel's conduct fell below `an objective standard of reasonableness' under `prevailing professional norms,' and (2) `affirmatively prove prejudice.'" United States v. Kirsh, 54 F.3d 1062, 1071 (2d Cir. 1995) (quoting Strickland v. Washington, 466 U.S. 668, 688, 693 (1984)).
Under the prejudice prong of the Strickland test, a court should determine whether "there is a reasonable probability" that "absent counsel's deficient performance," the "outcome of the proceeding would have been different." Mayo v. Henderson, 13 F.3d 528, 534 (2d Cir. 1994). Furthermore, "counsel's failure to insure that petitioner could testify before the grand jury does not[, by itself,] amount to ineffective assistance of counsel." Norman v. New York, No. 97 Civ. 7051, 1999 WL 983869, at *7 (S.D.N.Y. Oct. 29, 1999) (citations omitted).
The petitioner's counsel could have had several sound tactical reasons for not allowing his client to testify before the grand jury. See Kohler v. Kelly, 890 F. Supp. 207, 213 (W.D.N.Y. 1994), aff'd, 58 F.3d 58 (2d Cir. 1995). Had Mr. Foy actually testified, he would have exposed himself to cross-examination and waived his Fifth Amendment privilege against self-incrimination. See id. The prosecution could then attempt to introduce into evidence the petitioner's criminal record and use Mr. Foy's grand jury testimony to impeach him if he testified at the trial.See id.
Nevertheless, Mr. Foy argues that had he appeared before grand jury, he would have been able to "persuade the grand-jury [sic] not to indict him . . . [by] bringing [to] light . . . new details surrounding the events of the night of his and [Mr.] Gonzalez' arrests." (Pet. Reply at 17). His only credible allegations refer to the "multiple stab-wounds" he purportedly suffered at the hands of Mr. Gonzalez in what the petitioner claims was not a robbery, but a fare dispute that turned violent. (Pet. Reply at v-vi, 17). Yet, the grand jury would likely have drawn an inference of guilt even in the face of an alternative explanation proffered by Mr. Foy, given the considerable amount of evidence against him and the prosecution's low burden of proof. See Kohler, 890 F. Supp. at 214; see also People v. Bello, 92 N.Y.2d 523, 525-26, 683 N.Y.S.2d 168, 169-70 (1998) (laying out standard of review of grand jury indictments). The prosecution offered detailed testimony from both Mr. Gonzalez and Officer Frische regarding the events surrounding the robbery and as well as incriminating evidence recovered after Mr. Foy's arrest. (Transcript of Grand Jury Hearing attached to Petitioner's Appeal from Denial of Motion to Reargue Coram Nobis Petition at 9-14, 16, 28-31).
It follows that the petitioner cannot show that any errors made by his trial counsel with respect to the grand jury proceeding prejudiced him.See Saldana v. New York, 850 F.2d 117, 119-20 (2d Cir. 1988); see also Boyd v. Hawk, 965 F. Supp. 443, 451 (S.D.N Y 1997); Velez v. New York, 941 F. Supp. 300, 315-16 (E.D.N.Y. 1996). Accordingly, he has not established Sixth Amendment violation.
E. Ineffective Assistance of Appellate Counsel
Finally, Mr. Foy contends that his appellate counsel was ineffective because he submitted an inadequate brief and refused to raise those issues that the petitioner specifically asked to be included.
In attempting to establish ineffective assistance of appellate counsel, the petitioner faces much the same hurdle he failed to clear in his ineffective assistance of trial counsel claim. He must demonstrate (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that, but for the errors of counsel, there existed a reasonable probability of a different result in the proceedings. See Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) (applying Strickland standard to claim of ineffective appellate counsel).
The petitioner argues that the appellate brief was short and weak — eighteen pages containing eight points that were "assertions of minor errors" unsupported by any case law or statutory provisions. (Pet. Reply at 21). He further claims that his appellate counsel failed to include in the brief the two points the petitioner now raises in his habeas petition — the purported errors in the Sandoval hearing and in the grand jury proceeding. (Pet. Reply at 21).
The petitioner's assertions are belied by the record. The appellate attorney prepared a detailed brief raising plausible arguments. (Appellate Brief attached to Pet. Reply as Exh. G). The Appellate Division reached the merits on most of these arguments in its decision affirming the petitioner's conviction. People v. Foy, 212 A.D.2d 446, 622 N.Y.S.2d 937 (1st Dep't 1995). As to the issues that were not raised, it is well established that the appellate attorney "need not advance every argument, regardless of merit, urged by the appellant."Evitts v. Lucey, 469 U.S. 387, 394 (1985); see also, Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994). Under these circumstances, the attorney's performance was objectively reasonable. Furthermore, even if the petitioner's counsel had included Mr. Foy's arguments in his brief, there is no reasonable probability that the result would have been different.
Conclusion
For the reasons set forth above, I recommend that Travis Foy's application for a writ of habeas corpus be denied and his petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report and recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Deborah A. Batts, Room 2510, and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.