Opinion
No. 01 Civ. 5046 (DLC)
December 11, 2002
Brian Gibbs, Petitioner Pro Se, #95A3124, Camp Gabriels Box 100 Gabriels, N.Y. 12939-0100
Jo W. Faber, Esq., Assistant Attorney General State of New York 120 Broadway New York, N.Y. 10271-0332, For Respondent:
OPINION and ORDER
Petitioner Brian Gibbs ("Gibbs") filed this timely petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 ("Section 2254") on May 18, 2001. By Order of June 13, 2001, the petition was referred to Magistrate Judge Henry Pitman for a Report and Recommendation ("Report"). By his Report of September 9, 2002, Judge Pitman recommends that Gibbs' petition be denied in all respects. There have been no objections to the Report. For the reasons that follow, Judge Pitman's recommendation is adopted and Gibbs' petition is denied.
BACKGROUND
Gibbs was convicted on April 21, 1995, after a jury trial in the Supreme Court of New York County, of one count of criminal possession of a weapon in the second degree and one count of criminal possession of a weapon in the third degree. Gibbs' conviction arose from an incident in the apartment of a woman who is the mother of Gibbs' children. Petitioner brandished a gun in front of the woman and her two sons, and refused to leave when requested. While being driven to central booking, Gibbs asked what he was being charged with, and when told, said, "She's dead. I'm going to kill her." Gibbs was sentenced, as a second felony offender, to concurrent terms of imprisonment of four and one-half to nine years and three and one-half to seven years, and he is currently incarcerated.
The Appellate Division of the First Department affirmed Gibbs' conviction on October 27, 1998. The New York Court of Appeals denied leave to appeal on January 25, 1999. On November 29, 1999, Gibbs filed a motion to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. While this motion was pending, Gibbs also filed an application for a writ of error coram nobis with the Appellate Division, which was denied on July 13, 2000. Gibbs' Section 440.10 motion was denied on August 9, 2000, and on October 20, 2000, he filed a timely application for leave to appeal this denial with the Appellate Division, First Department. Leave was denied by the Appellate Division on December 19, 2000.
In denying leave to appeal, the First Department stated, "upon application timely made by the above-named defendant . . . ."
This petition is dated May 11, 2001, and as described by Judge Pitman, was timely. Judge Pitman correctly rejected the respondent's argument that the statute of limitations was not tolled during the period between August 9 and October 20, 2000, when Gibbs sought leave from the Appellate Division to appeal the denial of his Section 440.10 motion. Relying onCarey v. Saffold, 122 S.Ct. 2134 (2002), Judge Pitman held that the time between decision and the filing of an appeal in a state collateral proceeding is excluded in computing the one year statute of limitations for habeas petitions.
Gibbs raises four claims in his habeas petition. First, petitioner claims that his Fifth Amendment privilege against self incrimination was violated because the trial court failed to instruct the jury concerning the voluntariness of certain statements he made to the police. Second, petitioner claims that his appellate counsel was ineffective for failing to raise the error identified in his first claim. Third, Gibbs claims that his trial counsel was ineffective. Fourth, petitioner claims he was denied his right to testify before the grand jury.
A reviewing court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985); see also Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991)
1. Instructions on Voluntariness
Judge Pitman concluded that Gibbs' first claim, regarding the jury instructions on the voluntariness of his statements, is unexhausted and therefore not subject to habeas review. 28 U.S.C. § 2254(b) requires that a habeas petitioner exhaust all available state remedies for the violation of his asserted federal rights. See Aparicio v. Artuz, 269 F.3d 78, 89 (2d Cir. 2001). Any issue regarding the charge to the jury was apparent from the trial record, and could have been raised on direct appeal. As it was not, this claim is now procedurally barred. Gibbs has not shown cause for and prejudice from this failure or that it resulted in a fundamental miscarriage of justice. See, e.g., Strogov v. New York, 191 F.3d 188, 193 (2d Cir. 1999) Most significantly, Gibbs' claim regarding the alleged deficiency in the jury charge does not raise a constitutional question, as this requirement arises only from federal statutory law. See United States v. Gaines, 295 F.3d 293, 297 (2d Cir. 2002); Rodriguez v. Artuz, 99 Civ. 9752 (DLC), 2002 WL 31093605 (S.D.N.Y. Sept. 18, 2002).
Gibbs did not raise the issue in his state collateral attacks either.
2. Ineffective Assistance of Appellate Counsel
The Appellate Division considered Gibbs' second claim — that his appellate counsel was ineffective in not arguing that the failure to charge on voluntariness required reversal — on the merits. Judge Pitman subjected that ruling to the deferential standard of review inBrown v. Artuz, 283 F.3d 492, 500-01 (2d Cir. 2002). Having found that the argument that appellate counsel failed to assert on Gibbs' behalf was "merit less and appellate counsel's decision not to assert the claim constituted sound professional judgment," Judge Pitman could not conclude that the Appellate Divisions' failure to grant Gibbs relief on this ineffective assistance claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court." 28 U.S.C. § 2254(d)(1). Gibbs did not take the stand at his trial, and offered no evidence that the post-arrest statement at issue — essentially a brief, although highly prejudicial, spontaneous utterance of a threat against the complainant — was involuntary. In these circumstances, appellate counsel was entitled to choose stronger arguments as the basis for the appeal.
3. Ineffective Assistance of Trial Counsel
Gibbs' third claim is for ineffective assistance of his trial counsel. This claim is a "mixed" claim, in the sense that of the six grounds presented in the petition, Judge Pitman found that three were unexhausted and three, having been previously raised in the petitioner's 440.10 motion, were exhausted. The Second Circuit has advised in Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001), that when a district court is confronted with a mixed petition, the court should dismiss the unexhausted claims only, and stay adjudication of the exhausted claims. This permits a petitioner to return to state courts for full exhaustion of those claims not properly before the habeas court, while not risking running afoul of AEDPA's statute of limitations. Such a stay is meant to be conditioned on the petitioner's diligent pursuit of the unexhausted claims. Id. Nonetheless, while a habeas court cannot grant relief to unexhausted claims on their merits, AEDPA does permit dismissal of unexhausted claims on their merits. See 28 U.S.C. § 2254(b)(2);Aparicio v. Artuz, 269 F.3d 78, 91 (2d Cir. 2001)
Judge Pitman identified the following three claims as unexhausted: trial counsel's failure to produce evidence to the grand jury, failure to seek dismissal of the indictment, and failure to investigate or subpoena witnesses. These grounds were not part of the ineffective assistance of trial counsel claim contained in petitioner's 440.10 motion.
In Judge Pitman's view, these claims could still be presented to a state court and are not, therefore, procedurally barred. When good cause is shown, a prisoner may be permitted to bring a second Section 440.10 motion if it will serve the interests of justice to do so. See N.Y. Crim. Proc. Law § 440.10(3)(c). While it is conceivable that the last of these three claims might support a renewed Section 440.10 motion, it does not appear that the first two would. Judge Pitman did not, however, recommend that the petitioner be given an opportunity to request a stay of this petition while he exhausted these claims. Rather than follow theZarvela procedure, he recommended that they be denied on the merits.
I accept Judge Pitman's conclusion that these claims are meritless, and that it would serve no purpose to stay their adjudication while they are exhausted in state proceedings. Trial counsel's alleged failure to produce certain discovery materials received from the prosecutor to the grand jury provides no basis for relief, as under New York criminal procedure, trial counsel would not have possessed this evidence. N.Y. Crim. Proc. L. § 240.45(1). Petitioner presents no facts or basis to support the second and third claims, and therefore, these too can be dismissed without requiring for exhaustion. To the extent that any of these claims could not be presented now in a renewed Section 440.10 motion, they are procedurally barred and must be dismissed for petitioner's failure to show cause, prejudice or a miscarriage of justice.
The three remaining grounds for the ineffective assistance of trial counsel claim are counsel's alleged waiver of petitioner's state law right to appear before the grand jury, counsel's purported failure to prepare a defense, and counsel's failure to comply with CPL Article 730, which provides that a court in which a criminal action is pending "must issue an order of examination when it is of the opinion that the defendant may be an incapacitated person." N.Y. Crim. Proc. L. § 730.30(1). Judge Pitman found that two of the three exhausted claims were procedurally barred because the trial court denied the claims when presented in the Section 440.10 motion on the ground that they should have been presented on direct appeal. They are the claims that Gibbs should have been permitted to testify before the grand jury and counsel's failure to comply with Article 730. As with petitioner's first claim discussed above, as Gibbs has not shown cause for and prejudice from this failure to present these arguments on direct review, or that the failure resulted in a fundamental miscarriage of justice, he cannot obtain relief on these grounds through a habeas petition. See, e.g., Strogov, 191 F.3d 188, 193 (2d Cir. 1999)
Judge Pitman considered the remaining ground — that trial counsel failed to prepare a defense — on its merits, and recommended that it be denied. This claim was raised in petitioner's 440.10 motion, but rejected by the trial court on its merits. That ruling is subject to the deferential standard of review described in Brown, 283 F.3d at 500-01. Judge Pitman concludes that "the prosecution had a compelling case against petitioner to which there was no defense," and that "petitioner has failed even to suggest the existence of any admissible exculpatory evidence overlooked by his attorney." Finding no clear error in Judge Pitman's analysis of the record, I cannot find that petitioner is entitled to habeas relief under the Brown standard.
4. Grand Jury Testimony
The fourth and final claim in Gibbs' habeas petition is that he was denied the opportunity to testify before the grand jury. Judge Pitman correctly concluded that this claim is both unexhausted and, as it is a right created by state law alone, non-cognizable in a federal habeas proceeding. In these circumstances it is properly dismissed without giving the petitioner an opportunity to exhaust the claim.
CONCLUSION
The Recommendation of Magistrate Judge Pitman is adopted and the petition is dismissed. I further find that the petitioner having made no objection to the Report, and the Report having advised petitioner that failure to object will preclude appellate review of this Order, the petitioner has waived his right to appeal. U.S. v. Male Juvenile, 121 F.3d 34, 38-39 (2d Cir. 1997); Small v. Sec'y of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)
In addition, I decline to issue a certificate of appealability. The petitioner has not made a substantial showing of a denial of a federal right and appellate review is, therefore, not warranted. Tankleff v. Senkowski, 135 F.3d 235, 241 (2d Cir. 1998); Rodriguez v. Scully, 905 F.2d 24 (2d Cir. 1990). I also find pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Coppedge v. U.S., 369 U.S. 438, 445 (1962). The Clerk of Court shall dismiss this petition and close the case.