Opinion
03 Civ. 5746 (LAK) (GWG).
September 14, 2004
REPORT AND RECOMMENDATION
Chen Fu (referred to herein by his surname, "Chen") brings this petition for writ of habeas corpus pro se pursuant to 28 U.S.C. § 2254. Following a jury trial in the New York State Supreme Court, New York County, Chen was convicted of one count of Assault in the First Degree under N.Y. Penal Law § 120.10(1). He was sentenced to a prison term of six years. Chen is currently incarcerated pursuant to that judgment at the Mid-State Correctional Facility in Marcy, New York. For the reasons stated below, Chen's petition should be denied.
I. BACKGROUND
A. Evidence at Trial
This case arose out of an alleged assault involving two restaurant delivery workers who were involved in a bicycle accident near the intersection of Sixth Avenue and 11th Street in Manhattan on November 10, 1999.
1. The Prosecution's Case
a. The Assault of Cheong Wu Lu. In late 1998, Cheong Wu Lu began working as a delivery worker for the Sawaki Restaurant ("Sawaki"), located on Greenwich Avenue near 10th Street in Manhattan. (Lu: Tr. 20-21, 47). Lu used his bicycle to make deliveries within the 10block radius serviced by Sawaki. (Lu: Tr. 22-23).
On November 10, 1999, at approximately 6:30 p.m., Lu left Sawaki for a delivery to an address at the intersection of Sixth Avenue and 11th Street. (Lu: Tr. 23-24). Lu stopped his bicycle at a red light near Sammy's Noodle Shop ("Sammy's"), a restaurant located on Sixth Avenue between 10th and 11th Streets. (Lu: Tr. 25, 27, 29-30). While stopped at the red light, Lu noticed two men riding bicycles directly toward him. (Lu: Tr. 25, 27-30). Lu testified that the first bicycle coming at him was a black mountain bike with a plastic bag covering the seat and a chain with an unlocked padlock around the frame. (Lu: Tr. 28-29, 31). Lu identified Chen as the man steering this bicycle. (Lu: Tr. 28-29).
As Chen passed Lu on his bicycle, the handle bars on Chen's bicycle hit the right side of Lu's bicycle. (Lu: Tr. 28-29). Chen dismounted his bicycle and Lu and Chen began arguing and cursing at each other in the Mandarin dialect. (Lu: Tr. 30-32). Lu testified that Chen spoke with an accent from Shanghai. (Lu: Tr. 32-33). The man who had been steering the second bicycle told Lu and Chen to stop arguing because they were "all . . . delivery person [sic]." (Lu: Tr. 33). Lu and Chen argued for approximately two or three minutes and were standing approximately one foot apart from each other. (Lu: Tr. 29, 31). The area in which they were arguing was illuminated by streetlights. (Lu: Tr. 24).
Except for his testimony recounting the argument with Chen, during which he spoke in the Mandarin dialect, Lu testified at trial in his native Cantonese dialect. (Lu: Tr. 30-32). Lu did not, however, speak the Fukienese dialect. (Lu: Tr. 45).
As Lu prepared to leave the scene, an Asian man wearing an apron approached him from the direction of Sammy's and asked him whether he wanted to fight. (Lu: Tr. 33-34). When Lu turned to face the man, he heard a "metallic sound from [his] right hand side," where Chen was standing. (Lu: Tr. 34). Lu turned to his right and saw that Chen was holding the lock from his bicycle. (Lu: Tr. 35). Chen proceeded to "us[e] the lock" to strike Lu near his right eye. (Lu: Tr. 35, 46). Lu testified that Chen and the other bicyclist then jumped on their bicycles and rode away. (Lu: Tr. 37-38).
Several bystanders came to Lu's aid and called the police. (Lu: Tr. 39). One of the bystanders telephoned Florence Wen, who is Lu's stepsister and the manager of Sawaki. (Lu: Tr. 52; Wen: Tr. 65-65A). Wen arrived minutes later and Lu told her that "somebody hit his eyes with a lock." (Wen: Tr. 65A-66). Wen also spoke with the man who had called her but, according to Wen, he did not know anything about the incident. (Wen: Tr. 68).
Emergency Medical Technicians and police officers, including Sergeant Steven Malloy, arrived shortly thereafter. (Malloy: Tr. 73-74). Communicating through Wen (because Lu did not speak any English), Lu explained to Sergeant Malloy that he had been in an argument with a man with "loose" hair who was taller than him and that this man had hit him with a lock and then fled the scene. (Lu: Tr. 51-53). Lu did not provide any additional information to Sergeant Malloy about the perpetrator, such as a detailed physical description or the fact that the perpetrator spoke with a Shanghai accent. (Malloy: Tr. 77-78). However, the officer who completed the complaint report (someone other than Sergeant Malloy) wrote that the perpetrator's hairstyle was "curly, wavy." (Malloy: Tr. 78-79).
Lu was transported by ambulance to St. Vincent's Hospital for emergency surgery to his right eye. (Lu: Tr. 39-40). He was hospitalized for six days. (Lu: Tr. 39). Ultimately, Lu lost all vision in his right eye. (Lu: Tr. 46). At the time of trial, his left eye continued to function normally. (Lu: Tr. 46).
b. The Arrest of Chen. While in the hospital, Lu was visited by a Sawaki employee, who informed him that a bicycle with a white plastic cover seat had been seen outside of Sammy's. (Lu: Tr. 40). On November 17, 1999, following his discharge, Lu went to Sammy's and waited outside in a parked car. (Lu: Tr. 40). He observed approximately six workers making deliveries. (Lu: Tr. 40-41). After about 20 minutes, Lu spotted Chen returning to Sammy's on his bicycle. (Lu: Tr. 40-41). Lu recognized Chen as his assailant. (Lu: Tr. 41). Lu went to Sawaki and told Wen who he had seen. (Lu: Tr. 41; Wen: Tr. 70). Wen called the police. (Lu: Tr. 41; Wen: Tr. 70).
Police Officer Marc Marino and his partner arrived at Sawaki and spoke with Lu (through Wen). (Marino: Tr. 57-58). Accompanied by three undercover officers, Lu, Wen, Officer Marino, and his partner went to Sammy's and waited in Officer Marino's police car near the South corner of 11th Street and Sixth Avenue. (Lu: Tr. 41-42; Marino: Tr. 59-60). While waiting in the back seat, Lu saw two or three delivery workers enter and leave Sammy's. (Lu: Tr. 42; Marino: Tr. 59). After about 10 or 20 minutes, Lu spotted Chen approaching Sammy's on a bicycle wearing a "[l]ight colored kind of yellowish garment." (Lu: Tr. 42; Marino: Tr. 60-61). According to Officer Marino, Lu "[s]eemed very excited" and began "[y]elling and screaming" in a language that he did not understand (Marino: Tr. 61). At that point, Officer Marino noticed Chen approaching Sammy's on a bicycle wearing a "light color jacket." (Marino: Tr. 61). Officer Marino, his partner, and the undercover officers stopped Chen on the sidewalk. (Marino: Tr. 61-62). Officer Marino testified that Chen appeared surprised and was cooperative. (Marino: Tr. 62). After speaking with Chen, Officer Marino spoke with Lu (through Wen) once again. (Marino: Tr. 61). He then arrested Chen. (Marino: Tr. 61).
c. Chen's Statements to the Assistant District Attorney. About a year after the incident, in November or December 2000, Chen went to the New York County District Attorney's Office to make a statement. (Marino: Tr. 104). He was accompanied by two of his attorneys. (Marino: Tr. 104). During that meeting, Chen informed the Assistant District Attorney, through an interpreter, that he was from Shanghai and that he spoke Mandarin with a "Shanghainese dialect." (Marino: Tr. 104). He indicated, however, that he did not speak the Fukienese dialect. (Marino: Tr. 104). He stated that, on the day of the incident, he had been employed by Sammy's as a bicycle deliver worker. (Marino: Tr. 105). He described his bicycle as a black mountain bike with shock absorbers, a "brown plastic bag" covering the seat, and a white, stainless steel "U.S.A. lock that uses a key." (Marino: Tr. 105-06). He stated that at around 6:30 p.m. on the day of the incident, he was returning to Sammy's from a delivery when he rode past two or three people having an argument in the Fukienese dialect. (Marino: Tr. 105-06). Chen stated that he did not stop but heard someone being hit. (Marino: Tr. 105). When he finally dismounted his bicycle, he "looked to his left and he saw somebody pass him on a bicycle that he believed worked at the restaurant." (Marino: Tr. 105-06).
2. Chen's Case
The defense called three witnesses at trial — Chen, Yi Liu, and Police Officer Michael Divigilio.
a. Chen's Background. Chen testified that he was born in Shanghai and immigrated to the United States in January 1999. (Chen: Tr. 154). In October 1999, Chen began working at Sammy's as a delivery worker. (Chen: Tr. 157). He worked there with 10 or 11 other delivery workers, including Liu and Luo Feng. (Liu: Tr. 142-43; Chen: Tr. 157, 181-82, 185-86). According to Chen, the majority of the delivery workers spoke in the Fukienese dialect. (Chen: Tr. 158-59). Chen used his black mountain bicycle to make deliveries and kept his lock and chain wrapped to his bicycle's frame with black tape. (Chen: Tr. 182).
Chen testified at trial in his native Mandarin dialect. (Chen: Tr. 174; Tr. 176-78).
b. Testimony Concerning the Events of the Day of the Assault. Chen testified that on November 10, 1999, at approximately 7:00 p.m., he was returning to Sammy's from a delivery and was being followed by Feng, who was also returning from a delivery. (Chen: Tr. 158, 185-86). Chen saw about five people near the corner of 11th Street and Sixth Avenue. (Chen: Tr. 159). He heard one person cursing at another in the Fukienese dialect. (Chen: Tr. 159, 161). While riding past the group, he heard but did not see someone "being struck, a noise." (Chen: Tr. 161, 189-90). A "few seconds" later, Chen turned and saw someone he recognized ride past him "very fast on a bicycle." (Chen: Tr. 163, 166). Chen testified that this man, whose name he did not know, was a "newly arrived" delivery worker for Sammy's, that he spoke in the Fukienese dialect, and that they did not look alike. (Chen: Tr. 163-64, 191). After parking his bicycle in front of Sammy's, Chen looked toward where the group had been and saw a man holding his hand against his face. (Chen: Tr. 164). He also noticed two delivery workers from Sammy's approaching him from "the place where things happened." (Chen: Tr. 164; accord Tr. 199).
Officer Divigilio testified that when he responded to the scene, he found Lu near Sammy's receiving medical attention for his eye injury. (Divigilio: Tr. 126-27, 133). Communicating through Wen, Officer Divigilio spoke with Lu about the attack. (Divigilio: Tr. 126-27). They continued their discussion on the ambulance through another translator. (Divigilio: Tr. 127-29). As a result of their discussion, Officer Divigilio noted on his complaint report that the assailant was an Asian man with black, curly hair. (Divigilio: Tr. 130, 135). Lu did not provide Officer Divigilio with a description of the assailant's clothes, nor did he mention whether or not this man had an accent. (Divigilio: Tr. 129-30).
Liu testified that he returned to Sammy's from a delivery sometime around 7:30 p.m. on the day in question. (Liu: Tr. 145). Upon his arrival, he noticed that someone had been injured and that many people had gathered outside of Sammy's. (Liu: Tr. 145-46). He also saw a police car, a fire truck, and an ambulance parked nearby. (Liu: Tr. 145). Liu saw Chen standing in front of Sammy's with several other delivery workers. (Liu: Tr. 145). Liu testified that Chen appeared "normal" and did not have any blood on him. (Liu: Tr. 146). Both Liu and Chen thereafter continued making deliveries. (Liu: Tr. 146).
c. Testimony Concerning the Events Subsequent to the Day of the Assault. Liu and Chen testified that they reported for work the next day, November 11, 1999. (Liu: Tr. 146-47; Chen: Tr. 166). However, the Fukienese delivery worker from Sammy's who, according to Chen, rode past him on a bicycle immediately after the attack did not show up for work. (Liu: Tr. 147-48; Chen: Tr. 166-67). That worker had worked at Sammy's for approximately a week but neither Liu nor Chen ever saw him again after November 10. (Liu: Tr. 147-48; Chen: Tr. 167).
This worker has never been identified. Chen states that this individual "is related to the owner of [Sammy's], and that is one of the reasons why he can't be found." Traverse, dated January 28, 2004 ("Traverse"), at 7 n. 5.
On November 17, 1999, at approximately 9:00 p.m., Chen returned to Sammy's from a delivery and was arrested in front of the restaurant. (Chen: Tr. 167). Chen testified that he thought he was being arrested for riding his bicycle on the sidewalk. (Chen: Tr. 167). After being released from custody, Chen spoke with Feng and Feng told him, "It wasn't you because I was following right behind you." (Chen: Tr. 199).
Approximately a year later, Chen and one of his attorneys, Jennifer Blasser of the Legal Aid Society, went to the District Attorney's Office to "tell the facts of the matter." (Chen: Tr. 168-69).
B. Verdict and Sentence
On January 31, 2001, a jury found Chen guilty of Assault in the First Degree. (Tr. 284). On March 29, 2001, he was sentenced to a prison term of six years. (Sentencing Minutes: Tr. 4).
C. Chen's Section 440.10 Motion
Six days after he was sentenced, on April 4, 2001, Chen moved (through new counsel) to vacate his conviction pursuant to N.Y. Crim. Proc. Law ("CPL") § 440.10. See Notice of Motion, dated April 4, 2001 ("440.10 Mot.") (reproduced as Ex. A to Declaration of Jennifer K. Danburg in Opposition to Petition for a Writ of Habeas Corpus, filed October 21, 2003 (Docket #5) ("Danburg Decl.")), at 1. Chen claimed that his trial counsel, Blasser, deprived him of his Sixth Amendment right to effective assistance of counsel. See id. Specifically, Chen claimed that Blasser was ineffective for the following two reasons:
(1) Blasser was ineffective for failing to investigate and/or call at trial Shaw Lung Chu, Lin Rui Quan, and Wei Dong Cao. According to Chen, they would have testified that, inter alia, the assailant did not speak the Mandarin dialect but instead spoke the Fukienese dialect, which Chen testified he did not speak.
(2) Blasser's cross-examination was deficient. First, she failed to adequately cross-examine Lu about his ability to see and identify his assailant, including Lu's description of the perpetrator as having "loose" hair. Second, Blasser failed to conduct any cross-examination of Wen, specifically, concerning Wen's role in interpreting Lu's statements to the police.See Motion to Set Aside Judgment and for a New Trial, dated April 4, 2001 ("440.10 Mem.") (annexed to 440.10 Mot.), ¶¶ 4, 22-39.
On April 6, 2001, the trial court denied Chen's 440.10 motion.See Transcript of Proceedings, April 6, 2001 (reproduced as Ex. B to Danburg Decl.), at 4. Concerning Chen's claim as to Blasser's failure to call the three individuals as witnesses at trial, the court held:
While ineffective assistance of counsel might be present under circumstances in which defense counsel does not diligently search for witnesses, in the case at bar, [Blasser] spoke to the witnesses that [Chen's new attorney] mentions in his motion papers. These witnesses, now, according to [Chen's new attorney], might have been helpful to [Chen at] trial. [Blasser] chose as a matter of strategy not to call them. There may very well have been good reason for it. I don't think it's appropriate for the trial court to have a hearing and to question [Blasser] after trial as to the efficaciousness of her strategy. . . . I have serious doubt as to whether, at the time [Blasser] spoke to these witnesses, they said to her what [Chen's new attorney] now claims they would have said had they been called.
In any event, I would say that, overall, [Blasser's] efforts during the course of the trial were extremely diligent. She was very conscientious during the course of the trial, made as great an effort to have a favorable verdict as any defense attorney I've seen in recent years, and it was clear to me that she did a completely conscientious job.Id. at 3-4. Concerning Chen's claims concerning Blasser's cross-examination, the court stated:
I don't agree with [Chen's claims]. [Blasser] worked diligently, and I think covered all bases in her cross-examination. But in any event, I don't believe it's a subject that I will deal with at the trial level. I think if there's any complaint about her basic competence, I believe it's appropriate to have the Appellate Division rule on it.Id. at 2.
D. Chen's Direct Appeal
On May 7, 2001, Chen filed with the Appellate Division, First Department an application for leave to appeal the April 6, 2001 denial of his 440.10 motion. See Notice of Application, dated May 7, 2001 (reproduced as Ex. C to Danburg Decl.), at 1. On May 31, 2001, leave was granted. See Certificate Granting Leave, dated May 31, 2001 (reproduced as Ex. D to Danburg Decl.), at 1. Chen's appeal of the denial of his 440.10 motion was consolidated with his direct appeal. See Brief for Defendant-Appellant, dated August 27, 2001 ("Pet. App. Div. Brief") (reproduced as Ex. E to Danburg Decl.), at 2 n. 2.
On appeal to the Appellate Division, First Department, Chen raised the following three issues: (1) that he received ineffective assistance of counsel based upon the same two grounds raised in his 440.10 motion, see id. at 19-28; (2) that the People improperly bolstered the identification evidence at trial by calling two witnesses — Officer Marino and Wen — solely for the purpose of bolstering Lu's identification of Chen, in violation of the rule announced in People v. Trowbridge, 305 N.Y. 471 (1953), see id. at 29-39; and (3) that Chen's sentence was too harsh and should be reduced from six to five years, see id. at 39-41. Accord Reply Brief for Defendant-Appellant Fu Chen, dated March 8, 2002 (reproduced as Ex. G to Danburg Decl.), at 1-23.
On April 18, 2002, the Appellate Division unanimously affirmed Chen's conviction and sentence. People v. Chen, 293 A.D.2d 362 (1st Dep't 2002). With respect to the first issue, the court held that the denial of Chen's 440.10 motion without a hearing was proper "since [Chen's] moving papers failed to reveal an issue to be resolved by a hearing." Id. at 363 (citingPeople v. Satterfield, 66 N.Y.2d 796 (1985), and People v. Ford, 46 N.Y.2d 1021 (1979)).
[Chen's] papers were deficient in that they lacked an affirmation from [Blasser] explaining her strategic decisions, [or] any explanation for the absence of such an affirmation. [Chen] conceded that [Blasser] spoke to [Chu, Quan, and Cao]. [Blasser's] determination not to call these witnesses, after interviewing them, was a strategic level decision, and there is no basis for a finding that this decision constituted ineffective assistance (People v. Smith, 82 NY2d 731, 733). Notably, one witness denied any knowledge of the incident when he spoke to [Blasser]. In any event, [Chen] has failed to demonstrate that [Blasser's] failure to call these witnesses prejudiced him at trial, particularly since none of these witnesses claimed to have witnessed the assault.
[Chen's] claim that [Blasser] was ineffective for failing to adequately cross-examine [Lu] and [Wen] is unsupported by the record or the submissions on the CPL 440.10 motion. The record establishes that [Chen] received meaningful representation and his mere disagreement with the scope of cross-examination is insufficient to establish that [Blasser] was ineffective (People v. Benevento, 91 NY2d 708).Id. On the second issue — that the People improperly bolstered the identification evidence — the court held that it was "unpreserved" and "decline[d] to review [it] in the interest of justice." Id. The court then went on to state that, "[w]ere we to review" it, "we would find no basis for reversal." Id. Finally, the court held that there was "no basis for a reduction of sentence." Id.
By letter from counsel dated May 15, 2002, Chen sought leave to appeal from the Court of Appeals of New York with respect to the first two issues raised in his brief to the Appellate Division. See Letter from Judd Burstein to Stuart M. Cohen, Clerk of the Court, Court of Appeals of New York, dated May 15, 2002 (reproduced as Ex. I to Danburg Decl.), at 1. On July 11, 2002, leave was denied. People v. Chen, 98 N.Y.2d 696 (2002).
E. The Instant Habeas Corpus Petition
Chen timely filed this petition for writ of habeas corpus on August 4, 2003. His petition listed seven grounds as to why Blasser provided him with ineffective assistance of counsel.See Petition Under 28 U.S.C.A. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed August 4, 2003 (Docket #1) ("Petition"), ¶ 16. However, Chen voluntarily withdrew three of those seven claims. See Memorandum Endorsement, filed January 6, 2004 (Docket #9). The remaining four claims — and the only claims that are being presented to this Court for habeas review — are as follows:
1. [Blasser's] failure to properly investigate and introduce at trial exculpatory evidence, such as [the testimony of Chu, Quan, and Cao], is a clear sign of ineffectiveness.
2. [Blasser's] failure to object to the obvious [Trowbridge] violations at the time of improper identification bolstering by [Officer Marino's] testimony on [Lu's] demeanor at the time of [Chen's] arrest, stating that [Lu] was jumping and screaming on the back seat of the police car.
4. [Blasser's] failure to [attack Lu's] credibility was damaging to [Chen's] case[;] [Blasser's] failure to show the jury that [Lu] was lying under oath had substantial and injurious effect on the outcome of the proceedings.
5. [Blasser's] failure to cross-examine [Wen] was negligent and clearly prejudiced [Chen's] case.
Petition ¶ 16. On November 12, 2003, the matter was referred to the undersigned for report and recommendation.
On April 20, 2004, the Court issued an Order directing Blasser to submit an affidavit addressing Chen's claims that her representation was deficient, "in particular with respect to the claim that there was a failure to investigate and/or call as witnesses [Chu, Quan, and Cao]." Order, filed April 20, 2004 (Docket #10), at 1. As is described in greater detail in section III.A below, Blasser submitted an affidavit addressing these issues and other issues in July 2004. See Affidavit of Jennifer Blasser, filed July 22, 2004 (Docket #16) ("Blasser Aff."). Chen responded to Blasser's affidavit with his own affidavit. See Affidavit in Response and Opposition to Ms. Blasser's Affidavit, dated August 17, 2004 ("Chen Aff."). In addition, Chen's sister submitted a letter to the Court addressing Blasser's affidavit. See Letter from Alice Chen to the Court, dated August 18, 2004 ("Alice Chen Ltr."). Chen's affidavit and his sister's letter are being docketed herewith and have been considered by the Court in addressing Chen's claims.
II. APPLICABLE LEGAL PRINCIPLES
A. The Legal Standard for Habeas Petitions Brought Pursuant to 28 U.S.C. § 2254
The federal habeas corpus statute provides:
[A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254(a). Errors of state law are thus not subject to federal habeas review. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."). Rather, a petitioner must demonstrate that his conviction resulted from a state court decision that violated federal law. See, e.g., id. at 68.
Not every violation of federal law will suffice for habeas purposes, however. Where a state court has decided an issue "on the merits," a habeas court may grant relief only if that decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); accord Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). For a decision to be "on the merits" within the meaning of 28 U.S.C. § 2254(d), it must "finally resolv[e] the parties' claims, with res judicata effect," and be "based on the substance of the claim advanced, rather than on a procedural, or other, ground." Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) (citation omitted). According to the Second Circuit, as long as "there is nothing in its decision to indicate that the claims were decided on anything but substantive grounds," a state court decision will be considered "on the merits" even if it fails to mention the federal claim and even if no relevant federal case law is cited.Aparicio, 269 F.3d at 93-94; accord Sellan, 261 F.3d at 311-12.
In Williams v. Taylor, the Supreme Court held that a state court decision is "contrary to" clearly established federal law only "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision [of the Supreme Court] and nevertheless arrives" at a different result. 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if the state court unreasonably applied a governing legal rule to the particular facts of a case. Id. at 409, 413. Thus, if the state court decision is "on the merits," a federal court may not grant relief "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the state court's application must have been "objectively unreasonable." Id. at 409.
B. Law Governing Ineffective Assistance of Counsel Claims
"In order to prove ineffective assistance, [a petitioner] must show (1) 'that counsel's representation fell below an objective standard of reasonableness'; and (2) 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Pham v. United States, 317 F.3d 178, 182 (2d Cir. 2003) (quotingStrickland v. Washington, 466 U.S. 668, 688, 694 (1984));accord United States v. Guevara, 277 F.3d 111, 127 (2d Cir. 2001); see also Massaro v. United States, 538 U.S. 500, 505 (2003) ("[A] defendant claiming ineffective counsel must show that counsel's actions were not supported by a reasonable strategy and that the error was prejudicial.").
In evaluating the first prong — whether counsel's performance fell below an objective standard of reasonableness — "'[j]udicial scrutiny . . . must be highly deferential'" and "'every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time.'" Bell v. Cone, 535 U.S. 685, 698 (2002) (alterations in original) (quoting Strickland, 466 U.S. at 689); see Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (according counsel a presumption of competence); Guevara, 277 F.3d at 127 (same). Concerning the second prong — whether there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different — the Second Circuit generally "requires some objective evidence other than defendant's assertions to establish prejudice." Pham, 317 F.3d at 182 (citing United States v. Gordon, 156 F.3d 376, 380-81 (2d Cir. 1998) (per curiam)).
III. DISCUSSION
We discuss Chen's four claims of ineffective assistance of counsel in turn.
A. Failure to Investigate Three Individuals
Chen first claims that Blasser failed to investigate and/or call as witnesses at trial three individuals — Chu, the manager of Sammy's; Quan, a delivery worker for Sammy's; and Cao, the delivery manager at Sammy's. See Petition at 10-17; Traverse at 16-17. According to Chen, these individuals would have provided evidence favorable to his defense. See Petition at 10-17; Traverse at 16-17. Most significantly, Chen claims that these individuals would have revealed that the perpetrator spoke the Fukienese dialect — a dialect allegedly not spoken by Chen — thus suggesting that someone other than Chen committed the assault.See Petition at 11, 13, 15. This claim was adjudicated "on the merits" by the Appellate Division, see Chen, 293 A.D.2d at 363, and thus the deferential 28 U.S.C. § 2254(d) standard applies to this Court's review.
As with all ineffective assistance of counsel claims, a petitioner must show deficient representation and prejudice resulting therefrom. See, e.g., Strickland, 466 U.S. at 688, 694. Chen's claim fails because he has not demonstrated that Blasser's representation was deficient.
The "failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel." United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) (per curiam) (citations omitted), cert. denied, 538 U.S. 1021 (2003); accord United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000) ("[C]ounsel's decision as to whether to call specific witnesses — even ones that might offer exculpatory evidence — is ordinarily not viewed as a lapse in professional representation." (internal quotation marks and citation omitted)), cert. denied, 532 U.S. 1007 (2001); United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.) ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial."), cert. denied, 484 U.S. 958 (1987). This decision "fall[s] squarely within the ambit of trial strategy, and, if reasonably made, will not constitute a basis for an ineffective assistance claim." Nersesian, 824 F.2d at 1321.
While the choice whether or not to call a particular witness is a strategic choice that is "virtually unchallengeable," counsel "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690-91. Thus, "no lawyer could make a 'strategic' decision not to interview witnesses thoroughly, because such preparation is necessary in order to know whether the testimony they could provide would help or hinder [her] client's case, and thus is [a] prerequisite to making any strategic decisions at all." Newton v. Coombe, 2001 WL 799846, at *5 (S.D.N.Y. July 13, 2001); see also Griffin v. Warden, Md. Corr. Adjustment Ctr., 970 F.2d 1355, 1358 (4th Cir. 1992) ("An attorney's failure to present available exculpatory evidence is ordinarily deficient, unless some cogent tactical or other consideration justified it." (internal quotation marks and citation omitted)). Thus, if Blasser had reason to believe that these three individuals potentially had material favorable to Chen's defense and failed to investigate what evidence they might have been able to offer at trial, her representation of Chen would have been deficient.
Chen's ineffective assistance claim revolves around three individuals: Chu, Quan, and Cao. All three submitted affidavits in support of Chen's 440.10 motion. We deal with each individual in turn.
1. Chu
Chu avers that Lu told him shortly after the assault that he had been in "an argument with a Fukienese man and that the man had hit him." Affidavit of Shaw Lung Chu, dated March 12, 2001 (annexed to 440.10 Mot. and to Traverse), ¶ 3. He also states that he spoke with an Asian woman shortly after the assault who told him that Lu had said to her, "I had a fight with a Fukienese guy." Id. ¶ 6. He concludes, "I know that [Chen] is from Shanghai and that he has a very heavy Shanghai accent. The Shanghai accent is completely different from the Fukienese accent. The injured man said that he had a fight with a Fukienese man." Id. ¶ 8.
According to Blasser, she made "numerous visits" to Sammy's "in an effort to find witnesses to the incident." Blasser Aff. ¶ 7. She spoke with Chu "numerous times" at the restaurant, over the telephone, and at an office of the Legal Aid Society. Id.;accord 440.10 Mem. at 11 (conceding that Blasser met with Chu "several times" prior to trial); Petition at 14 (same). She also indicates that Chu was subpoenaed to testify at Chen's trial and was waiting outside of the courtroom during the trial. Blasser Aff. ¶ 7. Blasser decided not to call him as a witness, however.Id.
[G]iven the contradictory nature of [Chu's] testimony, including inconsistent statements he made to the district attorney prior to trial, I determined that his testimony would not be in the best interest of [Chen's] case. [Chu], while always asserting [Chen's] innocence, failed to provide a basis for this assertion. Nor would he corroborate [Chen's] testimony that there was a Fukienese man who had worked in deliveries at Sammy's briefly before the incident and who was never seen again after November 10, 1999.Id.
Blasser's explanation for her decision not to call Chu as a witness is a reasonable one. Obviously, a witness who has made inconsistent statements is subject to credibility attacks at trial. Moreover, it would have been devastating to Chen's case for the jury to hear that Chu, the manager of Sammy's, could not corroborate Chen's claim regarding the delivery worker who allegedly stopped coming to work after the day of the assault. Finally, there is no evidence that Chu ever revealed to Blasser prior to trial that Lu had purportedly confided to Chu that Lu had been hit by a Fukienese man.
For the first time, Chen in his August 2004 affidavit avers that there was an "audio tape, in which [Chu told Chen and Chen's sister] that there was in fact a new Fukienese delivery man, whom [sic] had just started working recently and whom [sic] also did not show after the evening of the incident, and was the same person whom [sic] was having the argument with [Lu]." Chen Aff. ¶ 5. Blasser has not had the opportunity to address this contention but the existence of this audiotape does not demonstrate in any event that Blasser was unreasonable in deciding not to call Chu as a witness. Even Chen's recent affidavit does not state that Blasser was aware of the contents of this audiotape prior to trial. In any case, Blasser states that Chu had made contradictory statements to the Assistant District Attorney,see Blasser Aff. ¶ 7, and thus she could reasonably determine that Chu would not have made a good witness for the defense. Chen's allegation — again made for the first time — that Blasser lost the Chu audiotape, as well as the bicycle lock and the metal chain, see Chen Aff. ¶ 5; Alice Chen Ltr. at 2, also does not mean that Chu would have made any more of a credible witness. Nor is there any record support for the contention that the bicycle lock and metal chain were exculpatory.
2. Quan
Quan indicates in his affidavit that he was returning to Sammy's from a delivery when he saw two men arguing, one of whom was speaking the Fukienese dialect. Affidavit of Lin Rui Quan, dated March 15, 2001 ("Quan Aff.") (annexed to 440.10 Mot. and to Traverse), ¶ 2. He states that Chen was not involved in this argument and that he could identify the two individuals if he saw them again. Id. ¶¶ 4-5. He also states that, shortly after the assault, he saw Chen standing on a line with other delivery workers waiting to pick up a delivery. Id. ¶ 2.
Chen states that Quan was the second bicyclist seen by Lu immediately prior to the assault and who tried to put down the argument. See Traverse at 4 n. 2. Quan's affidavit appears to support this contention. See Quan Aff. ¶ 2 ("I tried to intervene in an effort to stop the arguing, but to no avail.").
Blasser states that she
made several attempts to speak with [Quan] at [Sammy's], but he refused to speak with me each time. I then went to his home early one morning accompanied by a Chinese interpreter. He allowed us into the apartment where we sat and talked about [Chen's] case. During ou[r] conversation, he stated that [Chen] was innocent of the charges. However, he would not explain how he knew this to be true. [Quan] would not say that he observed the incident; he would not identify any of the people from Sammy's who were involved in the incident; nor would he state that a Fukienese man abruptly stopped working at Sammy's immediately after the incident. I explained the risks that [Chen] faced if he went to trial on the case, and the importance of providing any exculpatory information. But [Quan] would not provide any further information. It was my sense during the interview that he was holding back information, but I could not persuade him to speak with me further about the case. I met with him again outside of [Sammy's] during the week of trial. Again, he declined to say anything further about the case.
Blasser Aff. ¶ 8; accord 440.10 Mem. at 12 (conceding that Blasser met with Quan on at least one occasion prior to trial and that Quan told her "he did not know anything"); Petition at 14 (same).
While Blasser indicates that she "cannot recall the name" of this individual she refers to in her affidavit, Blasser Aff. ¶ 8 n. 1, Chen concedes that she is referring to Quan, see Chen Aff. ¶ 6(second).
Chen does not dispute the statements in Blasser's affidavit with regard to Quan. Instead, Chen asserts that Blasser met with Quan on the two occasions for "not longer than 10 minutes" and was unable to obtain any information from him. Chen Aff. ¶ 6(second); accord Alice Chen Ltr. at 1. Chen's sister states that Chen followed Quan home after work in order to find out where he lived and then suggested to Blasser that she interview Quan at home, which she did. See Alice Chen Ltr. at 1-2. But Chen himself concedes that Quan would not reveal anything to her, even in his own apartment. See Chen Aff. ¶ 6(second); accord Alice Chen Ltr. at 1-2.
Chen's complaint about Blasser's interview of Quan is that she did not inform Quan that no harm would come to him from the police department or from the Immigration and Naturalization Service if he testified in the case. See Chen Aff. ¶ 6(first), ¶ 6(second). Chen states that Quan feared deportation if he testified. See id. ¶ 6(second); accord Alice Chen Ltr. at 2. Specifically, Chen states that the District Attorney's Office had threatened to call the INS "and get [Quan] deported if he testified to what he knew." Chen Aff. ¶ 6(second). While Quan does not state that the District Attorney's Office threatened him with deportation, he does affirm that he "was terrified by the D.A.'s actions and statements, and was too frightened to talk about what [he] knew about the incident. . . . Had I not felt so threatened by the D.A., I would have told him everything that I know." Quan Aff. ¶ 4. Chen argues that Quan would have testified at the trial but for his fear of deportation. See Chen Aff. ¶ 6(second). He blames Blasser for failing to advise Quan that he would not be deported if he testified. See id.; accord Alice Chen Ltr. at 2.
Blasser cannot be faulted for Quan's failure to divulge information. While Blasser "sense[d] during the interview [at Quan's apartment] that he was holding back information," she affirms that she "could not persuade him to speak" about the case. Blasser Aff. ¶ 8. Moreover, even after the interview at Quan's apartment, Blasser met with him again during the week of trial. Id. He again declined to say anything about the case.Id. That Quan would not discuss the case with Blasser because of his fear of deportation if he testified cannot represent ineffective assistance of counsel. Chen asserts that Blasser should have promised Quan that he would not be deported as a result of his speaking publicly at a trial.See Chen Aff. ¶ 6(first), ¶ 6(second); accord Alice Chen Ltr. at 2. Blasser has not had an opportunity to address this newly-submitted argument but this is of no moment as a failure to promise something outside of counsel's control cannot represent ineffective assistance of counsel. There is no evidence that Blasser was made aware of any purported deportation threat by the Assistant District Attorney. In addition, Quan has not stated that he would have revealed everything he knew to Blasser had she asserted to him that he would not be deported. See generally Quan Aff. ¶¶ 3-4.
Given that Quan was completely uncooperative with Blasser, her determinations not to call him as a witness at trial or to make additional attempts to procure his testimony were reasonable ones.
3. Cao
Cao affirms that "a new Fukienese delivery boy was working" on the day of the assault but that she does not remember his name. Affidavit of Wei Dong Cao, dated March 29, 2001 (annexed to 440.10 Mot. and to Traverse), ¶ 3. She states that she never saw him again after 5:00 p.m. that day and that he never returned to work again. Id. Cao does not mention Blasser or state whether or not she ever declined to speak with Blasser.
Blasser states that during her visits to Sammy's she attempted to speak with employees "to determine whether there were any potential witnesses to the incident." Blasser Aff. ¶ 10. But, other than Liu, Chu, Quan, and Feng, "no other employee at [Sammy's] would agree to speak with [her] about the incident."Id. Thus, Cao — a Sammy's employee — is potentially within this group of employees who would not agree to speak with Blasser about the incident.
There is simply no basis for finding Blasser's representation to be deficient based upon Cao's affidavit. Blasser made more than an adequate investigation by attempting to speak with employees at Sammy's. Because Blasser made efforts to interview Sammy's employees, she did what a reasonable lawyer would have done under the circumstances and cannot be faulted for the fact that Cao either did not come to her attention or would not speak with her.
4. Conclusion
In sum, Blasser made a thorough investigation of the matter, including multiple attempts to obtain witnesses to testify at trial in Chen's defense. The record reflects that Blasser interviewed at least four individuals who might have had information concerning the assault — Liu, Chu, Quan, and Feng — and attempted to speak with other Sammy's employees to see if they had any information about the incident. See Blasser Aff. ¶ 10; see also id. ¶ 6 (Blasser sent an investigator to interview Lu prior to trial but Lu refused to speak with the investigator). Ultimately, she decided that Liu would offer testimony favorable to Chen and she decided to call him as a witness at trial.
Judging this matter from Blasser's perspective at the time of trial, and in light of the "highly deferential" nature of this Court's review, Bell, 535 U.S. at 698 (citing Strickland, 466 U.S. at 689), there is no basis upon which to conclude "that counsel's representation fell below an objective standard of reasonableness," Strickland, 466 U.S. at 688. Nor has Chen has overcome "the presumption that, under the circumstances," any of Blasser's challenged actions "might be considered sound trial strategy," id. at 689 (internal quotation marks and citation omitted). Because the Court concludes that Blasser acted reasonably, we need not consider whether Chen was prejudiced, i.e., whether there is a reasonable probability that the outcome of the trial would have been different in light of the proffered testimony of Chu, Quan, or Cao, see id. at 694.
In sum, the Appellate Division did not unreasonably applyStrickland or other Supreme Court law when it concluded that "[Blasser's] determination not to call these witnesses, after interviewing them, was a strategic level decision, and there is no basis for a finding that this decision constituted ineffective assistance," Chen, 293 A.D.2d at 363. Thus, Chen is not entitled to habeas relief with respect to this claim.
B. Failure to Object to Officer Marino's Alleged Bolstering Testimony
Chen's next claim is that Blasser's failure to object to the alleged bolstering testimony of Officer Marino represented ineffective assistance of counsel. See Petition at 18-23; Traverse at 18. The respondents argue that this claim is unexhausted and fails on the merits. See Memorandum of Law in Opposition to Petition for a Writ of Habeas Corpus, filed October 21, 2003 (Docket #4), at 15-18, 27-28. Rather than resolving the issue of exhaustion, the Court will exercise its discretion to consider the claim inasmuch as it may be denied on the merits.See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.").
The underlying Trowbridge violation allegedly occurred when Officer Marino testified that, upon Lu seeing Chen on November 17, 1999, Lu became "very excited" and began "[y]elling and screaming" in a language that Officer Marino did not understand (Marino: Tr. 61). See Petition at 18-19. It is Chen's contention that Blasser was ineffective for failing to object to this testimony. See id. at 18-23. However, because this testimony was not improper bolstering under State law, Blasser cannot have been ineffective in failing to object to it.
The New York State rule outlined in Trowbridge bars a witness from testifying that an out-of-court identification by another witness did occur. See 305 N.Y. at 475-77; accord People v. Forbes, 161 A.D.2d 485, 486 (1st Dep't 1990). But testimony does not constitute improper bolstering under Trowbridge unless it "include[s] a statement [by the testifying witness] that the [eyewitness] made an out-of-court identification." People v. Swift, 213 A.D.2d 355, 356 (1st Dep't 1995). Here, Officer Marino did not testify that Lu had identified Chen in front of him. Rather, his testimony was as follows:
Q. And at some point, did [Lu] begin to speak in the back seat?
A. Yes.
Q. Can you characterize his demeanor?
A. Seemed very excited.
Q. How so?
A. Yelling and screaming. I really didn't understand what he was saying but just very excited, yelling and screaming.
Q. And following that, what did you observe?
A. I looked to my left and I saw [Chen] coming down on the bicycle with a light color jacket and it was part of the description we were given.
. . . .
Q. And what did you do then?
A. At that point, we all exited the vehicle except for [Lu] and [Wen]. The anti-crime vehicle exited their vehicle and we stopped [Chen] on the sidewalk.
Q. And did you speak with [Wen] and [Lu] again?
A. Yes.
Q. After that conversation, did you place [Chen] under arrest?
A. Yes, I did.
(Marino: Tr. 60-61).
Because Officer Marino never testified that Lu identified Chen as the assailant, his testimony could not have been improper bolstering. See, e.g., People v. Cato, 287 A.D.2d 415, 415 (1st Dep't 2001) (police officer's testimony that he arrested the defendant after conversing with the complainant was permissible "to complete the narrative and explain the events leading to defendant's arrest"). Testimony similar to that given by Officer Marino concerning Lu's demeanor has been found by the New York State courts not to constitute improper bolstering. See, e.g., People v. Brown, 186 A.D.2d 356, 357 (1st Dep't 1992) (police officer's brief testimony that the complainant appeared to be "shaken" and "excited" as he gave a report of the robbery was not impermissible bolstering); People v. Cruz, 144 A.D.2d 686, 688 (2d Dep't 1988) (police officer's testimony that the complainant "was excited throughout the entire evening of the arrest" was not improper bolstering).
In any event, to the extent that Officer Marino's testimony could be considered "inferential bolstering," Swift, 213 A.D.2d at 356, it must be considered "harmless error in light of the exceptionally strong identification testimony of [Lu] and the improbability that [Chen] would have been acquitted but for the admission of the challenged testimony," id. (See, e.g., Lu: Tr. 28, 41-42). In other words, Chen cannot meet the second prong of the Strickland test, which requires a showing that had Blasser objected to this testimony — and presumably obtained a ruling striking it — "the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
In sum, Chen has not made out a claim of ineffective assistance of counsel with respect to this claim.
C. Failure to Attack Lu's Credibility
Chen claims that Blasser's representation was deficient because she "fail[ed] to show the jury that [Lu] was lying under oath." Petition ¶ 16(4); accord id. at 25-28; Traverse at 19-20. Specifically, Chen claims that Lu should have been cross-examined about his ability to see after he was struck in the eye with the bicycle lock. See id. at 25-27. This claim was adjudicated "on the merits" by the Appellate Division, see Chen, 293 A.D.2d at 363, and thus the deferential 28 U.S.C. § 2254(d) standard applies to this Court's review.
Decisions about "'whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature' and generally will not support an ineffective assistance claim." Dunham, 313 F.3d at 732 (quoting Nersesian, 824 F.2d at 1321). Here, nothing contradicted Lu's testimony that he had been struck in the right eye and had been bleeding from his eye after the assault. The jury learned that Lu had emergency surgery to his eye, was hospitalized for six days, and ultimately lost all vision in his eye. (See Lu: Tr. 39-40, 46). It would hardly have been useful for Blasser to unnecessarily harp on Lu's inability to see from his right eye inasmuch as Chen was being charged with causing that very injury. In addition, Lu testified that he had ample opportunity to view his assailant and that his left eye functioned at "[a] hundred percent." (Lu: Tr. 46). In fact, Lu provided a detailed description of the bicycle upon which the perpetrator rode, which matched Chen's bicycle. (See Lu: Tr. 28-29, 31; Marino: Tr. 105-06). Although Chen states that there was a "lack of good lighting conditions in that area," Petition at 26, Lu testified at trial that the assault took place in an area illuminated by streetlights (Lu: Tr. 24). Blasser cannot be faulted for forgoing this line of cross-examination as it would have added nothing to Chen's defense that the jury did not already know.
In addition, Chen's contention that Blasser should have cross-examined Lu about what he meant when he described the perpetrator to Sergeant Malloy as having "loose" hair, see Petition at 27-28, is meritless. Blasser in fact asked Lu whether he had reported that the assailant had curly hair, to which Lu replied, "No, I didn't say curly. I said he was kind of loose, the hair was loose." (Lu: Tr. 52). Blasser did not follow up on what Lu meant by "loose" hair, and for good reason: Lu could have amplified his testimony and explained that "loose" meant straight, which would have matched Chen's hair, see Petition at 29. That Blasser left the term "loose" to the jury's interpretation gave the jurors the option of interpreting it as inconsistent with Chen's appearance. Moreover, the jury had before it the police report, which indicated that Lu had described his perpetrator as having curly hair. (See Divigilio: Tr. 130). Thus, whatever benefit Chen could have derived from Lu's description of his perpetrator as having "loose" hair was presented to the jury and would not have been strengthened had Blasser pressed the issue.
Accordingly, the Appellate Division did not unreasonably applyStrickland or other Supreme Court law when it held that Chen "received meaningful representation and his mere disagreement with the scope of cross-examination is insufficient to establish that [Blasser] was ineffective," Chen, 293 A.D.2d at 363.
D. Failure to Cross-Examine Wen
Chen asserts that Blasser's decision not to cross-examine Wen represented ineffective assistance of counsel. See Petition at 29-30; Traverse at 21-22. Specifically, Chen argues that Wen "could have highlighted the inconsistencies of [Lu's] identification of the perpetrator . . . because the police report indicated that [Wen] had reported [Lu] stating that the perpetrator had curly hair, when [Chen] in contrast has straight hair." Petition at 29. Blasser was also allegedly ineffective for "never bother[ing] to ask Wen whether [Lu] did in fact say that he was hit by a Fukienese man." Id. at 30. This claim was adjudicated "on the merits" by the Appellate Division, see Chen, 293 A.D.2d at 363, and thus the deferential 28 U.S.C. § 2254(d) standard applies to this Court's review.
Wen was not a witness to the attack and her only role was as translator between Lu and the police officers. Any testimony concerning Lu's reporting that the assailant had curly hair was alluded to at trial by Officer Divigilio — a witness called by Chen — who testified that, as a result of his discussion with Lu, he noted on the complaint report that the assailant was an Asian man with curly hair. (Divigilio: Tr. 130). It was reasonable for Blasser to have concluded that Wen could not have offered any additional and favorable information on this score.
As for Lu's alleged statement that his assailant spoke the Fukienese dialect, Lu denied making this statement at trial (Lu: Tr. 54) and there is no indication or reason to expect that Wen would have contradicted him on this point. Certainly, had Wen testified that Lu did not make this statement, such testimony would have hurt Chen's defense. Blasser's decision not to ask this question of Wen — and thus avoid the risk of adverse testimony — was reasonable.
Accordingly, the Appellate Division did not unreasonably determine that Chen's "claim that [Blasser] was ineffective for failing to adequately cross-examine . . . [Wen] is unsupported by the record or the submissions on the CPL 440.10 motion," Chen, 293 A.D.2d at 363. Conclusion
While not an independent claim raised in his petition, Chen appears to argue in passing that Blasser's summations to the jury were deficient. See Petition at 40. Even were this claim exhausted, the Court has reviewed Blasser's summation and finds Chen's contentions to be without merit.
Chen has also recently submitted a document seeking an evidentiary hearing. See Motion for Evidentiary Hearing on Petitioner's Habeas Corpus Motion, dated August 31, 2004. No such hearing is required, however, as there are no factual issues in dispute that are material to Chen's claims and thus the Court can decide the case on the existing record. See, e.g., Crawford v. Artuz, 165 F. Supp. 2d 627, 633 (S.D.N.Y. Oct. 11, 2001);see generally Chang v. United States, 250 F.3d 79, 84-86 (2d Cir. 2001).
For the foregoing reasons, Chen's petition should be denied.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have ten (10) days from service of this Report and Recommendation to file any objections.See also Fed.R.Civ.P. 6(a), (e). Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with copies sent to the Hon. Lewis A. Kaplan, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Kaplan. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).