Pro se petitioner Oliver Hediam seeks a writ of habeas corpus from his 1996 conviction in Supreme Court, New York County, of first degree criminal possession of a controlled substance and second degree criminally using drug paraphernalia, and sentence of fifteen years to life imprisonment and two concurrent one-year sentences. (Dkt. No. 1: Pet. ¶¶ 1-4.) Hediam's habeas corpus petition alleges that: (1) his conviction for criminal possession of a controlled substance and criminally using drug paraphernalia is repugnant to his acquittal for criminal possession of a controlled substance with intent to sell (Pet. ¶ 12(A) Attachment); (2) the State failed to prove beyond a reasonable doubt that he exercised control over the bedroom from which the drugs and drug paraphernalia were seized (Pet. ¶ 12(B) Attachment); and (3) his trial counsel was ineffective for failing to move under the Fourth Amendment to suppress the evidence seized from the apartment (Pet. ¶ 12(C) Attachment).

For the reasons set forth below, Hediam's petition should be DENIED.

FACTS

On March 25, 1994, Hediam was indicted for first and third degree criminal possession of a controlled substance, second degree criminally using drug paraphernalia (two counts), and fourth degree criminal possession of a weapon (two counts). (Ex. A: Record on Appeal to 1st Dep't at 14-17:3/25/94 Indictment.) The Prosecution Case at Trial

At times, the transcript and other court documents refer to Oliver Hediam as Oliver "Hediam." For consistency, the Court will use "Hediam" throughout this Report Recommendation.

References to exhibits are to those attached to the October 7, 2002 affidavit of Assistant Attorney General Darian B. Taylor. (Dkt. No. 16.)

On the evening of March 18, 1994, Police Officers Richard Wells and Brian Ranaghan were conducting building "vertical patrols," in which, to eliminate trespassing, they walked through building stairwells, hallways and roof areas pursuant to criminal trespass consent affidavits from each building's owner or managing agent. (Wells: Trial Transcript ["Tr."] 264-67; Ranaghan: Tr. 410-11.)

The trial transcript, in six volumes, is Docket Nos. 18-23.

At approximately 8:35 p.m., Officers Wells and Ranaghan entered 548 West 164th Street through the roof entrance as part of a building vertical patrol. (Wells: Tr. 267-68; Ranaghan: Tr. 411-12). When the officers descended to the well-lit third floor hallway, Officer Wells "heard locks that appeared to be unlocking" from the direction of apartment 3H. (Wells: Tr. 269-70.) Officer Wells was "basically on the opposite side of the hallway, approximately ten to fifteen feet away from the door . . ., just off of the stairwell landing," with nothing obstructing his view of the front door to apartment 3H. (Wells: Tr. 269-70, 273.) Officer Ranaghan was behind Officer Wells, standing on the landing near the stairwell. (Wells: Tr. 273, 326-27 Ranaghan: Tr. 415, 432, 434.) No other apartment doors on the third floor were open and no one else was in the hallway. (Wells: Tr. 270, 352-53; Ranaghan: Tr. 419-20.)

The door to apartment 3H opened, and Officer Wells "observed a male Hispanic attempt to exit the location, at which time [Officer Wells] observed the silver top strap portion and also the white butt handle of a firearm tucked into this male's waist." (Wells: Tr. 269; see also id. at 298, 315, 333-34, 337-39.) The man, later identified as Oliver Hediam, took a step out of the apartment; he did not walk more than a foot or two away from the door. (Wells: Tr. 271, 334-38; Ranaghan: Tr. 413-14, 444-46.) Officer Wells testified that, "[u]pon exiting the apartment [Hediam] appeared startled. He basically stopped in his tracks, momentarily froze, eyes widened a bit, and he turned and fled back into the apartment." (Wells: Tr. 271; see also id. at 272-73; Ranaghan: Tr. 414, 416, 435, 445-46.) Hediam attempted to slam the apartment door behind him, but Officer Wells stopped the door with his body before it closed fully. (Wells: Tr. 273-74, 342-43; Ranaghan: Tr. 417, 436-37, 446, 457.) Hediam ran down a long hallway within the apartment, with the officers close behind. (Wells: Tr. 274-75; Ranaghan: 417-18, 456-57.) Simultaneously, Officer Wells radioed for assistance, mentioning the gun. (Wells: Tr. 274-76, 362; Ranaghan: Tr. 418, 453-54.)

Officer Wells testified that as Hediam passed an open door approximately halfway down the apartment's well-lit hallway, Hediam made "a sweeping motion with [his] left arm, as if something was being thrown" to the left. (Wells: Tr. 276-77, 285, 345-50.) Officer Wells was approximately ten feet behind Hediam at this time. (Wells: Tr. 277.)

Officer Wells caught up with Hediam in the living room, where another male, Juan Cordero, was sitting on a sofa. (Wells: Tr. 276-79, 287, 349, 353; Ranaghan: Tr. 420-22.) Hediam and Cordero were ordered to the ground and checked for weapons, but none were found. (Wells: Tr. 279, 287, 350; Ranaghan: Tr. 421-22, 459.) For the officers' safety, Officer Wells did a quick check of the rest of the apartment for other occupants, while Officer Ranaghan watched over Hediam and Cordero in the living room. (Wells: Tr. 280, 288-89, 295-96, 299; Ranaghan: Tr. 422, 424-25.)

After the initial quick search, Officer Wells entered the open door of the second bedroom down the hallway from the front door. (Wells: Tr. 290, 299-300, 370.) At the foot of the bed, Officer Wells saw a handgun — silver with a white handle — resembling the handgun he had seen earlier on Hediam's waistband. (Wells: Tr. 290-91, 315.) Officer Wells also recovered a .32 caliber firearm from a slightly-opened top dresser drawer. (Wells: Tr. 292, 317, 365-66.) Officer Wells also observed a scale, two sifters, a pestle, a calculator, a box of aluminum foil, and a box of clear plastic baggies on the dresser. (Wells: Tr. 291-92, 371-72.) In addition, he saw two large bags, one small white bag and one small jar, all containing white powder that looked like cocaine, as well as a small clear plastic bag housing a yellow rock-like substance resembling crack-cocaine. (Wells: Tr. 291.) Officer Wells did not find any money inside this second bedroom. (Wells: Tr. 299.) Throughout Officer Wells' search of the apartment, Officer Ranaghan remained in the living room with Hediam and Cordero. (Wells: Tr. 297; Ranaghan: Tr. 427.) Officer Ranaghan did not hear doors being broken down or kicked in. (Ranaghan: Tr. 426-27.)

Back-up officers arrived at the apartment approximately one or two minutes after Officer Wells' radio call for assistance. (Wells: Tr. 299, 362-63; Ranaghan: Tr. 427.) As soon as the first two back-up officers arrived, Officer Wells began collecting evidence while Officer Ranaghan remained in the living room. (Wells: Tr. 300-01.)

When Sergeant Robert Yackel (the 34th Precinct anti-crime supervisor) arrived, the door to the second bedroom (where Officer Wells was working) was unbroken. (Yackel: Tr. 234-39). Officer Wells gave Sergeant Yackel a dresser drawer containing two guns, drugs and drug paraphernalia for transport to the precinct. (Yackel: Tr. 237-38, 240; Wells: Tr. 293, 296, 301.) Officers Wells and Ranaghan took Hediam and Cordero to the 34th Precinct, where they recovered a beeper from Hediam and a small amount of money and a beeper from Cordero. (Wells: Tr. 301-03; Ranaghan: Tr. 428.) Officer Wells vouchered into evidence the drawer-full of items taken from the apartment (Wells: Tr. 304-06, 310-22), and the bags and jar were taken to the police laboratory for analysis (Wells: Tr. 308). Police chemists testified that some of the bags contained cocaine. (Getkhman: Tr. 386, 392; Griffel: Tr. 395, 400.)

Senior Investigator Brendan Leddy of the Office of Special Narcotics testified as an expert witness that the cocaine seized at the apartment was worth approximately $9,000. (Leddy: Tr. 246, 248-50.) Investigator Leddy also testified that the usual layout of a drug apartment includes "a table, the triple beam scale, pre-cut aluminum foil, calculator and perhaps a notebook of running accounts of the day's work." (Leddy: Tr. 253.)

On cross examination of Officer Wells, defense counsel established that the retrieved gun was unloaded, and that Officer Wells did not find any bullets, drugs or even keys to the apartment on Hediam. (Wells: Tr. 357, 374.) Defense counsel also established that at the time he was arrested, Hediam told the police that it was his mother's apartment. (Wells: Tr. 363-64, 380.) Defense counsel also accused Officer Wells of breaking down the locked door to the bedroom from which the drugs and gun were recovered, which Officer Wells denied. (Wells: Tr. 369.)

The prosecution rested (Tr. 460), and the defense moved to dismiss on the ground that Hediam was not in the bedroom in which the drugs and gun were found. (Tr. 461-62.) The People argued that Hediam had "dominion and control over this apartment." (Tr. 462-63.) The trial court denied the defense's motion, finding it an issue for the jury. (Tr. 463.)

The Defense Case at Trial The Occupants and Condition of Apartment 3H

Hediam's wife Ruth and mother Isabel lived in apartment 3H along with two "tenants" who subleased rooms in the apartment. (Pena: Tr. 481, 484-85, 506-07, 523-24; Zapata: Tr. 540, 544; I. Hediam: Tr. 558-60, 562-63, 570-71; Hediam: Tr. 660-61, 682-83, 728.) Isabel and Ruth lived in the first bedroom closest to the front door, a boarder named Pedro Tavaris lived next to them in the second bedroom from the front door, and a boarder named Juan rented the third bedroom. (Hediam: Tr. 661-62, 682-83, 728, 747; I. Hediam: Tr. 560-61, 571; Cordero: Tr. 592, 595.) Hediam lived in apartment 1G. (Pena: Tr. 480; Zapata: Tr. 540; Hediam: Tr. 654.) Pedro Tavaris never came back to apartment 3H after Hediam was arrested. (I. Hediam: Tr. 576.) Cordero testified that the boarders' bedroom doors in apartment 3H were generally kept locked and that he "never" saw the bedroom doors "open." (Cordero: Tr. 594-95.) In the week he worked in the apartment, Cordero never saw anyone come in or out of those rooms, but did hear doors slam. (Cordero: Tr. 631-32.)

By the time of trial, Isabel lived in apartment 1G with Hediam and his wife. (I. Hediam: Tr. 557-58.)

In March 1994, Hediam and Cordero were renovating the kitchen and the bathroom of apartment 3H. (I. Hediam: Tr. 563-64, 569-70; Hediam: Tr. 657, 664; Cordero: Tr. 590, 614.) Hediam was "in charge" of the renovations for Isabel. (I. Hediam: Tr. 563-64, 570.) According to Isabel, Hediam had a key to apartment 3H (I. Hediam: Tr. 564-65), but Cordero said Ruth always opened the 3H apartment door for them (Cordero: Tr. 598). In contrast to his mother's testimony, Hediam testified that he did not have the key to apartment 3H but that there was one in his apartment, Apt. 1G. (Hediam: Tr. 662-63.)

Luis Pena, the superintendent of 548 West 164th Street, testified that on the morning of March 18, he briefly went to apartment 3H to show the building manager the repairs being made in the bathroom and kitchen. (Pena: Tr. 478, 480, 492, 495.) Hediam, who let him into the apartment, and Cordero were present. (Pena: Tr. 521.) Pena noticed that none of the door locks were broken and that the second bedroom door was closed and locked. (Pena: Tr. 487-88, 525.) Two days after Hediam's arrest, Pena was called to apartment 3H to fix two broken locks that seemed to have been forced open. (Pena: Tr. 485-86, 512-14, 525-26.) On cross examination, Pena admitted that he did not know the condition of the doors or locks from the day of Hediam's arrest until two days later. (Pena: Tr. 515.) He also became "not sure" whether the doors were broken or not on the morning before Hediam's arrest. (Pena: Tr. 525-26.)

Neighbor Zapata's Testimony: The Police Knocked on the Door

Lorenza Zapata, who lived next door in apartment 3G, testified that after 7:00 p.m. on March 18, 1994, as she walked a friend out her apartment door, she saw two police officers knocking hard on the closed front door of apartment 3H. (Zapata: Tr. 533-34, 538, 545-46.) According to Zapata, one of the officers saw her and put his finger to his lip, which she understood to mean "not to say anything or shut up." (Zapata: Tr. 534-35, 549.) Shortly thereafter, Zapata heard a lot of breaking and shattering noises coming from apartment 3H. (Zapata: Tr. 535-36.) On cross-examination, however, Zapata admitted that she told police investigators and an Assistant District Attorney that no unusual sounds had come from apartment 3H and that she heard only "repair sounds." (Zapata: Tr. 548-50.)

Cordero's Testimony

Cordero recounted the circumstances leading to his arrest:

We were in the apartment. I came early in the morning, like 11:00, something like that, to work. I was doing kitchen fixing together with my friend [Hediam] here, and in that apartment I was doing like two weeks work.

I was fixing the kitchen together with him, Oliver Hedia[m], and about in the afternoon late, like 6:00, 7:00, 8:00, something like that, some police came, knock the door. My friend open the door after awhile, and you know, [the police] just dump him on the floor. He came inside.

A lot of screaming. [The police] bring him [Hediam] to the place I was, in the living room sitting down watching TV. I was eating sandwich, some food, and he dump us in the place, I mean in the — I mean in the living room, and we were arrested in the place.

(Cordero: Tr. 585-86; see also id. at 587, 596.) Cordero testified that Hediam did not have a gun in his waistband (Cordero: Tr. 589.) According to Cordero, the police grabbed Hediam, "dump him in the hallway, then bring him to the place of the living room, they put us both in the, in the floor. . . . Took me, dump me in the floor, put a foot on top of my back over here." (Cordero: Tr. 599.) The police told Cordero, "`Don't look nowhere, stay still, nothing is going to happen to you, but if you move, if you look up I will blow up your head.'" (Cordero: Tr. 600-02.) Both police officers then went around to every room in the apartment, "banging doors and things," while Hediam and Cordero were left alone in the living room. (Cordero: Tr. 601, 637; Hediam: Tr. 670.) Cordero and Hediam were arrested but Cordero's case was dismissed when he told the judge that he was just working in the apartment. (Cordero: Tr. 603-04.)

The prosecution attacked Cordero's credibility. For example, although Cordero testified at trial that the police knocked at the door of the apartment and that Hediam opened the door to let them in (Cordero: Tr. 585-86), Cordero earlier told the Grand Jury that he did not hear anyone knocking and that he did not actually observe Hediam open the front door (Cordero: Tr. 621-23). Cordero conceded on cross-examination that he "never heard a knock on the door." (Cordero: Tr. 623.) Cordero also had told a detective that after Hediam opened the door, "`with no warning [he] heard the noise of running in the apartment.'" (Cordero: Tr. 618-19.) Cordero never told the Grand Jury that the police kicked in or knocked down any doors in the apartment (Cordero: Tr. 634-35, 646-47), and while he took pictures of the apartment for evidence after his arrest, he did not take any pictures of damaged doors (Cordero: Tr. 632-35).

Hediam's Own Testimony

Hediam testified that on March 18, 1994, he arrived at apartment 3H at around 5 p.m. to help Cordero with the renovation work. (Hediam: Tr. 663-64, 666.) Hediam's wife brought them sandwiches, which Hediam and Cordero ate in the living room while watching television. (Hediam: Tr. 667.) "[S]omeone knocked on the [apartment] door," Cordero went to the door to look (contrary to Cordero's testimony), but did not see anyone. (Hediam: Tr. 667.) A few minutes later, "they started knocking a little stronger again," Hediam went to the door, saw police and opened the door to see what they wanted. (Hediam: Tr. 667-68.) Hediam did not step out of the apartment. (Hediam: Tr. 684.)

Hediam did not have a gun — not then, not ever. (Hediam: Tr. 668, 700.) Hediam also testified that he "never sold drugs to anyone." (Hediam: Tr. 769.)

Hediam "hadn't even open the door completely when [the officer] knocked [him] down on the floor" and dragged him to the living room. (Hediam: Tr. 668-69, 685-86.) The officers threw both Hediam and Cordero to the ground, and told them (with expletives) to "`shut up.'" (Hediam: Tr. 669-70.) The two officers left Hediam and Cordero alone in the living room and went to the bedroom. (Hediam: Tr. 670.) Hediam saw Officer Wells go to the second bedroom and "started kicking that door," the lock broke and Office Wells went into the bedroom. (Hediam: Tr. 670-71.) Officer Wells "screamed `Bingo!' [a]nd came out of the room," shoving money into his vest area. (Hediam: Tr. 672-73.) Before the police entered the apartment, Hediam never saw the drugs found in the second bedroom. (Hediam: Tr. 702.) Officer Wells saw Hediam looking his way and told Hediam that if he lifted his head again "he would blow [Hediam's] brains out." (Hediam: Tr. 673.) At that time, the officers radioed for back-up. (Hediam: Tr. 673.) Hediam told Officer Wells that he did not know anything about the things found in the bedroom, he and Cordero were renovating Hediam's mother's kitchen. (Hediam: Tr. 675.) When the other officers arrived, Hediam and Cordero were arrested and taken to the 34th Precinct, where Hediam told a detetive that he was working in his mother's apartment. (Hediam: Tr. 677.) He was afraid, however, to tell the detective that he saw the officers take money in the apartment. (Hediam: Tr. 678.)

The prosecutor's cross-examination pointed out inconsistencies between Hediam's trial testimony and his prior statements. For example, Hediam admitted that he was interviewed by a detective at the precinct on the night of his arrest, and that he signed a statement that made no mention of police officers knocking his head into a wall, stealing money, or kicking down doors. (Hediam: Tr. 706-09.) As another example, contrary to his direct testimony about hearing a knock at the door, on cross examination Hediam admitted that he told a detective shortly after his arrest and later told a district attorney that he heard a doorbell ring in his apartment on the evening of March 18, and he signed a statement to that effect. (Hediam: Tr. 713-17.) Moreover, when asked in his civil case against the police if they ever hit Hediam, he had testified that they did not hit him. (Hediam: Tr. 726-28.) Hediam admitted on cross that contrary to his direct testimony, he did not see the police break down the bedroom door, but rather that he "heard the kicking sounds." (Hediam: Tr. 747-48.) The Prosecution's Rebuttal Case at Trial

Hediam explained that he did not tell anyone at the precinct that Officer Wells had taken money because Hediam "was afraid that this policeman, if he was able to take that money and I saw him, maybe he will hurt my children or my family." (Hediam: Tr. 677-78.) In October 1994, while at Riker's Island, Hediam informed two Internal Affairs officers (and, later, an Assistant District Attorney) that Wells had taken money. (Hediam: Tr. 678-79.)

At sentencing, the trial judge noted that while determining credibility was the jury's job, "frankly, I must say personally there were certain things [Hediam] testified to and certain aspects of his demeanor that I, personally, did not or did not appear to me to be that credible; but, again, I am not the finder of the facts." (Sentencing: S. 36-37.)

In rebuttal, Rubin Valentin, a senior investigator in the Manhattan District Attorney's Office Official Corruption Unit, testified that he investigated Hediam's allegations of police corruption. (Valentin: Tr. 775-76.) He interviewed Lorenza Zapata, who told Valentin that she became scared when she saw police officers banging on the door of 3H, so she went back into her apartment and closed the door. (Valentin: Tr. 777.) Shortly thereafter, "she heard footsteps running down the hallway." (Valentin: Tr. 777-78.) Although Valentin specifically asked her to describe what she heard that night, she did not tell Valentin that she heard any other unusual noises, such as "breaking or shattering" coming from apartment 3H. (Valentin: Tr. 778.)

Valentin also interviewed Hediam two or three times. (Valentin: Tr. 779-80, 782-83.) During those interviews, Hediam never mentioned that any police officers hit, beat or kicked him, threatened to hurt him, or broke down doors in the apartment. (Valentin: Tr. 780-82.)

Verdict and Sentencing

On March 26, 1996, the jury found Hediam guilty of one count of first degree criminal possession of a controlled substance and two counts of second degree criminally using drug paraphernalia. (Verdict: Tr. 964-66, 976-78.) The jury found Hediam not guilty of third degree criminal possession of a controlled substance and two counts of fourth degree criminal possession of a weapon. (Verdict: Tr. 964-66, 976-78.)

Hediam's counsel requested that the verdict be set aside as inconsistent or repugnant. (Tr. 966-67.) The trial judge refused because "[t]o the extent that it may appear to be somewhat illogical, jurors frankly are given the power to grant that kind of leniency, giving the defendant the benefit of the doubt"; although the judge is not required to find the particular explanation for the verdict, he said that there are "logical explanation[s]," such as the jury finding Hediam not guilty on drug sales because the prosecution had "no real evidence of intent to sell, other than sheer weight." (Verdict: Tr. 968-75.)

At the April 18, 1996 sentencing, the court denied Hediam's motion "to set aside the verdict on the grounds that the People have failed to prove their case beyond a reasonable doubt." (Sentence: S. 15.) The trial judge sentenced Hediam to the mandatory minimum of fifteen years to life imprisonment for first degree criminal possession of a controlled substance, and one year for each of the two drug paraphernalia counts, all of the sentences to run concurrently. (Sentence: S. 38.)

Hediam's Direct State Appeal

Represented by different counsel, Hediam appealed to the First Department in December 1997, claiming, inter alia, that the evidence was insufficient to meet the prosecution's burden of proof or "insufficient causing a repugnant verdict." (Ex. B: Hediam 1st Dep't Br.) In July 1998, Hediam filed a pro se supplemental brief with the First Department adding the following Fourteenth Amendment claims:

• [Hediam's] convictions of criminal possession of a controlled substance in the first degree and two counts of criminally using drug paraphernalia in the second degree were repugnant to his acquittals of criminal possession of a controlled substance in the third degree with intent to sell and two counts criminal possession of a weapon in the second degree, requiring the court below to set aside the verdict. . . .

• The People failed to prove beyond [a] reasonable doubt that [Hediam] exercised dominion and control over his mother's — Isabel Hediam's — apartment and the drugs and drug paraphernalia found in the second bedroom that was being rented out. . . .

(Ex. C: Hediam Pro Se Supp. 1st Dep't Br.; see also Ex. E: Hediam Pro Se 1st Dep't Reply Br.)

On February 18, 1999, the First Department affirmed Hediam's conviction, holding:

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There was ample evidence of constructive possession, as well as possession under the "room presumption" theory (Penal Law § 220.25[2]). We see no reason to disturb the jury's credibility determinations. In light of the court's charge, the jury's acquittal of defendant on the possession with intent to sell count and weapon possession counts was not repugnant to the convictions on the other counts.

People v. Hedian, 258 A.D.2d 363, 363, 683 N.Y.S.2d 848, 848-49 (1st Dep't 1999) (citations omitted).

The New York Court of Appeals denied leave to appeal on November 30, 1999. People v. Hedian, 94 N.Y.2d 824, 702 N.Y.S.2d 594 (1999).

Hediam's C.P.L. § 440.10 Motion

On September 6, 2000, Hediam moved under C.P.L. § 440.10 to vacate his conviction, alleging ineffective trial counsel because his attorney failed to move to suppress the drugs and paraphernalia seized from the apartment. (Ex. L: Hediam § 440 Br. at 1.) In opposition, the State asserted that Hediam's defense counsel had told an Assistant District Attorney that "he felt a motion for a Mapp hearing would be antithetical to his client's consistent contention that defendant never had any possessory or proprietary interest in the drugs or paraphernalia recovered. Defense Counsel Velez further stated that this was a strategical decision on his part prior to trial." (Ex. M: State § 440 Br., fourth page.)

On June 23, 2001, the trial court denied Hediam's motion:

In order for the defendant to have moved for a Mapp hearing, it was necessary for him to allege sufficient facts to warrant a hearing. Critically, the defendant needed to show that he himself had a personal legitimate expectation of privacy in the premises or object searched. The defendant's position throughout the proceedings, however, was that the drugs the police recovered were not his but were seized from a locked bedroom that his mother had sublet to a boarder. While the defendant's connection to his mother's home may have been sufficient to afford him standing to a general search of her home, under the defendant's version of the facts, he had no standing to contest the police search of the tenant's room.

Moreover, although a defendant is permitted to take inconsistent positions at the suppression hearing and trial, the prosecution would have been allowed to impeach him with the inconsistency if he elected to testify at trial. Here, the defendant testified at the trial and put on additional witnesses to try and convince the jury that his story was credible. In light of this, counsel's election to forego a Mapp hearing was not only a legitimate strategy, but practically the only one open to him under the circumstances. There is, therefore, no basis to believe the defendant was denied the effective assistance of counsel. The motion is therefore denied.

(Ex. O: 6/23/01 C.P.L. § 440 Decision at 3-4 (citations omitted).) The First Department denied leave to appeal. (Ex. R.) See People v. Hediam, No. M-4751, 2001 N.Y. App. Div. LEXIS 10297 at *1 (1st Dep't Oct. 30, 2001).

Hediam's Federal Habeas Corpus Petition

Hediam's habeas corpus petition raises three grounds for relief:

1. [Hediam's] Conviction of Criminal Possession of a Controlled Substance and two counts of Criminally Using Drug Paraphernalia is repugnant to his acquittal of Criminal Possession of Controlled Substance with intent to sell.

2. The People failed to prove beyond a reasonable doubt that [Hediam] exercised dominion and control over both his mother's apartment and the drugs and drug paraphernalia seized from the apartment. . . .

3. [Hediam] was denied . . . effective assistance of counsel . . . where trial counsel failed to file a motion to suppress the evidence which was obtained in violation of his fourth amendment right to privacy.

(Dkt. No. 1: Pet. ¶ 12(A)-(C) Attachments.) The State concedes that the Petition is timely and that all three claims are exhausted. (Dkt. No. 15: State Br. at 16-19.)

ANALYSIS

I. THE AEDPA REVIEW STANDARD

For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of this Report Recommendation, see Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *6-8 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.); Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *5-6 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *6-8 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Velazquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *12-14 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *6-7 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *9-11 (S.D.N.Y. July 18, 2002) (Peck, M.J.); Bueno v. Walsh, 01 Civ. 8738, 2002 WL 1498004 at *10-11 (S.D.N.Y. July 12, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *14 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *8-9 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at 8-9 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *4-5 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.); Thomas v. Duncan, 01 Civ. 6792, 2001 WL 1636974 at *7 (S.D.N.Y. Dec. 21, 2001) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *6 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Rodriguez v. Lord, 00 Civ. 0402, 2001 WL 1223864 at *16 (S.D.N.Y. Oct. 15, 2001) (Peck, M.J.); James v. People of the State of New York, 99 Civ. 8796, 2001 WL 706044 at *11 (S.D.N.Y. June 8, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31426266 (S.D.N.Y. Oct. 25, 2002) (Berman, D.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *5 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *22 (S.D.N.Y. June 6, 2000) (Peck, M.J.), report rec. adopted, 2000 WL 1154320 (S.D.N.Y. Aug. 14, 2000) (McKenna, D.J.), aff'd, 303 F.3d 411, 417 (2d Cir. 2002); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002).

Before the Court can determine whether Hediam is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) . . . 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)(1)-(2).

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S.Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S.Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

Accord, e.g., Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v. Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S.Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S.Ct. 865 (2001).

Accord, e.g., DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 123 S.Ct. 251 (2002); Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent 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 result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S.Ct. at 1519-20.

Accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S.Ct. at 1523. However, "[t]he term `unreasonable' is . . . difficult to define." Id. at 410, 120 S.Ct. at 1522. The Supreme Court made clear that "an unreasonable application of federal law is different from an incorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409, 120 S.Ct. at 1521. The Second Circuit has explained "that while `[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)); accord, e.g., Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184. Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45; accord Yung v. Walker, 296 F.3d at 135. Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v. Walker, 296 F.3d at 134.

See also, e.g., DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

Accord, e.g., Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord, e.g., Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, No. 02-7208, 2002 WL 31520415 (2d Cir. Dec. 16, 2002); Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("In Sellan, we found that an even more concise Appellate Division disposition — the word `denied' — triggered AEDPA deference."); Norde v. Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001). On the other hand, "[i]f it cannot be determined from the state-court opinion whether the denial of a given claim was based on a procedural ground rather than on the merits, no AEDPA deference is due the state-court decision on that claim." Rudenko v. Costello, 286 F.3d 51, 69 (2d Cir. 2002).

The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the `unreasonable application' or `contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Norde v. Keane, 294 F.3d at 410; Aparicio v. Artuz, 269 F.3d at 93.

Here, the First Department decided the repugnant verdict and sufficiency of the evidence of dominion and control issues on the merits, see People v. Hedian, 258 A.D.2d 363, 363, 683 N.Y.S.2d 848, 848-99 (1st Dep't 1999), and the § 440 court also decided Hediam's ineffective assistance claim on the merits (Ex. O, quoted at page 15 above), so the deferential AEDPA standard applies to all of Hediam's habeas claims.

II. HEDIAM'S REPUGNANT VERDICT CLAIM IS NOT COGNIZABLE ON FEDERAL HABEAS REVIEW

Hediam claims that "the jury's acquital [sic] of the criminal possession with intent to sell [count] was repugnant to its convicting [Hediam] of the criminal possession in the first degree count." (Pet. ¶ 12(A) Attachment.) According to Hediam: "the verdict rendered was repugnant because the jury had acquitted [Hediam] of, inter alia, the weapon the police testified to seeing on [Hediam's] person as he attempted to exit his mother's apartment. Given the trial court's specific instruction that if the jury did not believe that the police saw a weapon on [Hediam's] person [the police] were not permitted to enter the apartment, the verdict must be deemed repugnant," and a "compromise verdict" was not permitted. (Id.)

Hediam's claim is meritless. It is well settled that "inconsistent jury verdicts are not a ground for habeas relief." Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *13-14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.) (citing cases); see, e.g., United States v. Powell, 469 U.S. 57, 58, 105 S.Ct. 471, 473 (1984); Harris v. Rivera, 454 U.S. 339, 345, 102 S.Ct. 460, 464 (1981) ("[i]nconsistency in a verdict is not a sufficient reason for setting it aside"); Dunn v. United States, 284 U.S. 390, 393-94, 52 S.Ct. 189, 190-91 (1932); United States v. Acosta, 17 F.3d 538, 545 (2d Cir. 1994) ("it has long been established that inconsistency in jury verdicts of guilty on some counts and not guilty on others is not a ground for reversal of the verdicts of guilty"); United States v. Alvarado, 882 F.2d 645, 653 (2d Cir. 1989), cert. denied, 493 U.S. 1071, 110 S.Ct. 1114 (1990); United States v. Romano, 879 F.2d 1056, 1060 (2d Cir. 1989); United States v. Chang An-Lo, 851 F.2d 547, 559-60 (2d Cir.), cert. denied, 488 U.S. 966, 109 S.Ct. 493 (1988); Williams v. Artuz, 98 Civ. 7964, 2002 WL 989529 at *8 (S.D.N.Y. May 15, 2002) ("A claim of inconsistent or repugnant verdicts presents no issue upon which federal habeas corpus relief could be granted."); Torres v. Costello, No. 97-CV-5480, 2001 WL 811924 at *11 (E.D.N.Y June 1, 2001) (Raggi, D.J.) ("The Supreme Court . . . has long held that a prisoner found guilty on one count of an indictment cannot attack his conviction simply because it appears inconsistent with a finding of not guilty on another count. . . . Indeed, courts recognize that inconsistent verdicts are often a product of jury lenity, which courts will not review."); Bowden v. Keane, 85 F. Supp.2d 246, 251 n. 6 (S.D.N.Y. 2000) ("`a jury is free to render inconsistent verdicts or to employ relevant evidence in convicting on one count that it may seem to have rejected in acquitting on other counts'"), aff'd 237 F.3d 125 (2d Cir. 2001); Rust v. Eisenschmidt, No. 97CV615, 2000 WL 33767757 at *3 (N.D.N.Y June 8, 2000); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *12-13 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.).

See also, e.g., Erdheim v. Greiner, 22 F. Supp.2d 291, 298 (S.D.N.Y. 1998); Carr v. New York, No. 97 CV 117, 97 CV 490, 1998 WL 178844 at *2 (E.D.N.Y. Feb. 13, 1998); United States v. Anzellotto, No. 93 CR 1316, 1995 WL 313641 at *3 (E.D.N.Y. May 9, 1995); Billups v. Costello, 91 Civ. 6296, 1992 WL 170650 at *4 (S.D.N.Y. July 6, 1992) ("As long as a conviction is the result of a fair trial at which legally sufficient evidence has been adduced, its inconsistency with another verdict does not create a constitutional defect."); Savage v. Berbary, No. CIV-90-290E, 1991 WL 147371 at *2 (W.D.N.Y. July 22, 1991) ("Alleged inconsistencies in state court verdicts are not a proper ground for federal habeas corpus intervention. . . ."); United States v. Marcus Schloss Co., No. 88 CR. 796, 1989 WL 153353 at *2 (S.D.N.Y. Dec. 11, 1989); United States v. Stagnitta, No. 87-CR-182, 1988 WL 46617 at *6-7 (N.D.N.Y. May 6, 1988); United States v. Obayagbona, 627 F. Supp. 329, 345 (E.D.N.Y. 1985).

In United States v. Powell, the Supreme Court explained that "where truly inconsistent verdicts have been reached, `[t]he most that can be said . . . is that the verdict shows that either in the acquittal or the conviction the jury did not speak their real conclusions, but that does not show that they were not convinced of the defendant's guilt.' . . . It is equally possible that the jury, convinced of guilt, properly reached its conclusion . . . then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the [other] offense." 469 U.S. at 64-65, 108 S.Ct. at 476 (quoting Dunn, 284 U.S. at 393, 52 S.Ct. at 190). The Supreme Court in Powell rejected, as "imprudent and unworkable, a rule that would allow criminal defendants to challenge inconsistent verdicts on the ground that in their case the verdict was not the product of lenity, but of some error that worked against them. Such an individualized assessment of the reason for the inconsistency would be based either on pure speculation, or would require inquiries into the jury's deliberations that courts generally will not undertake." United States v. Powell, 469 U.S. at 66, 105 S.Ct. at 477; accord, e.g., United States v. Acosta, 17 F.3d at 546 ("A court knows only what the jury's verdicts were, not what the jury found, and it is not within the province of the court to attempt to determine the reason or reasons for verdicts that are inconsistent."); United States v. Chang An-Lo, 851 F.2d at 559-60; Dukes v. McGinnis, 2000 WL 382059 at *14; Estrada v. Senkowski, 1999 WL 1051107 at *14.

Accord, e.g., Dukes v. McGinnis, 2000 WL 382059 at *14; Estrada v. Senkowski, 1999 WL 1051107 at *14; see also, e.g., Torres v. Costello, 2001 WL 811924 at *11.

Thus, Hediam's repugnant verdict due process claim is not cognizable on federal habeas corpus review.

III. HEDIAM'S SUFFICIENCY OF THE EVIDENCE CLAIM SHOULD BE DENIED

Hediam's second habeas claim alleges that the prosecution "failed to prove beyond a reasonable doubt that [Hediam] exercised dominion and control over both his mother's apartment and the drugs and drug paraphernalia seized from the apartment at the time of [Hediam's] arrest."

(Dkt. No. 1: Pet. ¶ 12(B) Attachment.) Hediam claims that the prosecution was "unable to contest [Hediam's] claim that the drugs and paraphernalia belonged to the male boarder [Pedro Tavaris] who occupied the room in question." (Id.)

A. Legal Principles Governing Sufficiency of the Evidence Habeas Claims

For additional decisions authored by this Judge discussing the sufficiency of the evidence standard in habeas cases in language substantially similar to this section of this Report Recommendation, see Gutierrez v. Ricks, 02 Civ. 3780, 2002 WL 31360417 at *7-10 (S.D.N.Y. Oct. 21, 2002) (Peck, M.J.); Ibarra v. Burge, 02 Civ. 0825, 2002 WL 1467756 at *4-5 (S.D.N.Y. July 9, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *13-14 n. 17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *9-10 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *4 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *7 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *6 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 214-15 (S.D.N.Y. 2001) (Peck, M.J.); Cassells v. Ricks, 99 Civ. 11616, 2000 WL 1010977 at *5 (S.D.N.Y. July 21, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *7 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Roldan v. Artuz, 78 F. Supp.2d 260, 266-67 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999 WL 1051107 at *14 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *25 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Jones v. Strack, 99 Civ. 1270, 1999 WL 983871 at *12 (S.D.N.Y. Oct. 26, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 137 (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *4 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.); Fernandez v. Dufrain, 11 F. Supp.2d 407, 416 (S.D.N.Y. 1998) (Kaplan, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *4 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.); Robinson v. Warden of James A. Thomas Ctr., 984 F. Supp. 801, 805 (S.D.N.Y. 1997) (Sprizzo, D.J. Peck, M.J.); Ehinger v. Miller, 942 F. Supp. 925, 935 (S.D.N.Y. 1996) (Mukasey, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 284 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.).

"[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction `except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.'" Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 2787 (1979) (quoting In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970)). However, "a properly instructed jury may occasionally convict even when it can be said that no rational trier of fact could find guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 317, 99 S.Ct. at 2788. Accordingly, "in a challenge to a state criminal conviction brought under 28 U.S.C. § 2254 — if the settled procedural prerequisites for such a claim have otherwise been satisfied — the applicant is entitled to habeas corpus relief if it is found that upon the record evidence adduced at the trial no rational trier of fact could have found proof of guilt beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. at 324, 99 S.Ct. at 2791-92.

Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 811 (2d Cir. 2000); Einaugler v. Supreme Court, 109 F.3d 836, 839 (2d Cir. 1997).

Petitioner Hediam bears a very heavy burden:

[T]he standard for appellate review of an insufficiency claim placed a "very heavy burden" on the appellant. Our inquiry is whether the jury, drawing reasonable inferences from the evidence, may fairly and logically have concluded that the defendant was guilty beyond a reasonable doubt. In making this determination, we must view the evidence in the light most favorable to the government, and construe all permissible inferences in its favor.

United States v. Carson, 702 F.2d 351, 361 (2d Cir.) (citations omitted), cert. denied, 462 U.S. 1108, 103 S.Ct. 2456, 2457 (1983).

Accord, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d at 811 ("petitioner bears a very heavy burden in convincing a federal habeas court to grant a petition on the grounds of insufficiency of the evidence"); United States v. Middlemiss, 217 F.3d 112, 117 (2d Cir. 2000); United States v. Autuori, 212 F.3d 105, 114 (2d Cir. 2000) ("a defendant shoulders a `heavy burden' in challenging the sufficiency of evidence supporting a conviction"); United States v. Kinney, 211 F.3d 13, 16 (2d Cir. 2000), cert. denied, 531 U.S. 1079, 121 S.Ct. 778 (2001); United States v. Bicaksiz, 194 F.3d 390, 398 (2d Cir. 1999) (The defendant "bears a `very heavy burden' in challenging the sufficiency of the evidence that led to his conviction. In considering any such challenge, we view all proof in the light most favorable to the government and draw all reasonable inferences in the government's favor.") (citations omitted), cert. denied, 528 U.S. 1161, 120 S.Ct. 1175 (2000); United States v. Russo, 74 F.3d 1383, 1395 (2d Cir.), cert. denied, 519 U.S. 927, 117 S.Ct. 293 (1996); United States v. Rosa, 11 F.3d 315, 337 (2d Cir. 1993) ("[T]he defendant who makes a sufficiency challenge bears a heavy burden."), cert. denied, 511 U.S. 1042, 1096, 114 S.Ct. 1565, 1864 (1994); United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993) (burden on defendant claiming insufficiency is "very heavy" and all inferences must be drawn in the government's favor).

The habeas court's review of the jury's findings is limited:

[T]his inquiry does not require a court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt." Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 318-19, 99 S.Ct. at 2789 (citations omitted).

Accord, e.g., United States v. Middlemiss, 217 F.3d at 117; United States v. Kinney, 211 F.3d at 16; United States v. Russo, 74 F.3d at 1395 (quoting United States v. Martinez, 54 F.3d 1040, 1042-43 (2d Cir.), cert. denied, 516 U.S. 1001, 116 S.Ct. 545 (1995)); Mallette v. Scully, 752 F.2d 26, 31 (2d Cir. 1984).

The Jackson v. Virginia "standard must be applied with explicit reference to the substantive elements of the criminal offense as defined by state law." Jackson v. Virginia, 443 U.S. at 324 n. 16, 99 S.Ct. at 2792 n. 16; accord, e.g., Green v. Abrams, 984 F.2d 41, 44-45 (2d Cir. 1993) ("In considering a petition for a writ of habeas corpus based on insufficient evidence to support a criminal conviction in the state courts, a federal court must look to state law to determine the elements of the crime.").

B. The Evidence Was Legally Sufficient to Support Hediam's Conviction

Hediam was convicted of first degree criminal possession of a controlled substance and two counts of second degree criminally using drug paraphernalia. (See page 13 above.)

"A person is guilty of criminal possession of a controlled substance in the first degree when he knowingly and unlawfully possesses: (1) one or more preparations, compounds, mixtures or substances containing a narcotic drug and said preparations, compounds, mixtures or substances are of an aggregate weight of four ounces or more. . . ." Penal Law § 220.21(1). "A person is guilty of criminally using drug paraphernalia in the second degree when he knowingly possesses or sells [drug paraphernalia]." Penal Law § 220.50. Hediam claims that because of testimony that the bedroom door was locked and the bedroom was rented to Pedro Tavaris, the drugs and paraphernalia were not owned or controlled by Hediam. (See Pet. Ex. 12(B) Attachment); Ex. B: Hediam 1st Dep't Br., Point I; Ex. C: Hediam Pro Se Supp. 1st Dep't Br. at 31-39.)

Hediam does not dispute that the drugs found in the bedroom — cocaine — are included in the statutory definition of "controlled substance," nor does he dispute that the white powder appearing to be a dilutant, the scale, sifters, aluminum foil, and the box of clear plastic bags apparently for individual packaging of the cocaine, are all included in the statutory definition of "drug paraphernalia." (See Ex. B: Hediam 1st Dep't Br., Point I; Ex. C: Hediam Pro Se Supp. 1st Dep't Br. at 31-39.)

Viewing the evidence in the light most favorable to the prosecution, a rational juror could have found Hediam guilty beyond a reasonable doubt for both of these offenses. Under the Penal Law, "`[p]ossess' means to have physical possession or otherwise to exercise dominion or control over tangible property." Penal Law § 10.00(8). "In New York, the rule has long been that to support a charge that a defendant was in constructive possession of tangible property, the People must show that the defendant exercised `dominion or control' over the property by a sufficient level of control over the area in which the contraband is found. . . ." People v. Manini, 79 N.Y.2d 561, 573, 584 N.Y.S.2d 282, 288 (1992); accord, e.g., People v. Bailey, 295 A.D.2d 632, 633, 743 N.Y.S.2d 610, 613 (3d Dep't 2002) ("As . . . the trial evidence does not establish that [defendant] physically possessed the drugs, the People must establish constructive possession beyond a reasonable doubt. To do so, the evidence in chief must establish that defendant exercised dominion and control over the property. . . ."); People v. Skyles, 266 A.D.2d 321, 322, 698 N.Y.S.2d 286, 287 (2d Dep't) ("A sufficient level of control over the area in which the contraband is found establishes constructive possession."), appeal denied, 94 N.Y.2d 867, 704 N.Y.S.2d 543 (1999); People v. Diaz, 220 A.D.2d 260, 260, 632 N.Y.S.2d 82, 83 (1st Dep't 1995) ("Where, as here, the evidence demonstrates that defendant owned, rented or had control over or a possessory interest in, the apartment where drugs were found, the evidence is legally sufficient to establish his constructive possession of such drugs.").

See also, e.g., People v. Hamilton, 291 A.D.2d 411, 411-12, 736 N.Y.S.2d 901, 902 (2d Dep't), appeal denied, 98 N.Y.2d 651, 745 N.Y.S.2d 510 (2002); People v. Hojas, 271 A.D.2d 547, 547, 706 N.Y.S.2d 349, 350 (2d Dep't) ("The evidence established that the defendant exercised a sufficient level of control over the back room of his store to support the jury's finding that he had constructive possession of the eight packets of cocaine that were found inside a flowerpot in that room."), appeal denied, 95 N.Y.2d 866, 715 N.Y.S.2d 221 (2000); People v. Humphrey, 221 A.D.2d 657, 657-58, 634 N.Y.S.2d 212, 213 (2d Dep't 1995), appeal denied, 87 N.Y.2d 1020, 644 N.Y.S.2d 154 (1996); People v. Fetter, 201 A.D.2d 500, 500-01, 607 N.Y.S.2d 381, 382 (2d Dep't) (Defendant's guilt via constructive possession proved: "A rational juror could infer from the evidence that the defendant was the manager of the grocery store where the stolen goods were found. Therefore, the evidence was sufficient to establish that the defendant exercised `dominion and control' over the store."), appeal denied, 83 N.Y.2d 967, 616 N.Y.S.2d 19 (1994).

The prosecution relied on the theory that Hediam had constructive possession of the drugs and paraphernalia, since he exercised control over the apartment in which the contraband was found in plain sight in an open bedroom. Officer Wells testified that he observed Hediam step out of the apartment, appear startled, and run back into the apartment, attempting to shut the door behind him. (See page 3 above.) Hediam also had keys to the apartment (see page 7 above), pointing to his dominion over the apartment. See, e.g., United States v. Grant, 545 F.2d 1309, 1313 (2d Cir. 1976) (having keys to the area in which contraband was found contributed to the finding of constructive possession), cert. denied, 429 U.S. 1103, 97 S.Ct. 1130 (1977); People v. Robertson, 48 N.Y.2d 993, 994, 425 N.Y.S.2d 545 (1980) (same). The police testified that the door to the second bedroom was wide open and the drugs and drug paraphernalia were on top of the dresser, in plain view. (See page 4 above.) Although Hediam and other defense witnesses testified that the second bedroom door was closed and locked (see pages 6-7, 10 above), a reasonable jury could have believed the officers' testimony and concluded that since the contraband was situated in an open room in close proximity to Hediam, Hediam had constructive possession of the items. Under the "room presumption" theory, which the trial court included in its jury instruction, "[t]he presence of a narcotic drug . . . in open view in a room, other than a public place, under circumstances evincing an intent to unlawfully mix, compound, package or otherwise prepare for sale such controlled substance is presumptive evidence of knowing possession thereof by each and every person in close proximity to such controlled substance at the time such controlled substance was found. . . ." Penal Law § 220.25(2). Intent to prepare the drugs for sale in this case is evident from the sheer quantity of drugs found, as well as from the discovery of a dilutant powder, aluminum foil, plastic bags, a scale, a calculator, and other accessories related to the packaging and sale of drugs. Under these circumstances, if the jury believed that the door to the second bedroom was open, they could have reasonably presumed that Hediam, who was close to the second bedroom by virtue of being in the apartment, possessed the drugs and paraphernalia. See, e.g., People v. Jiminez, 292 A.D.2d 196, 197, 738 N.Y.S.2d 344, 344 (1st Dep't) ("The police testimony and physical evidence established that crack cocaine was being packaged for sale, in open view, in one of the bedrooms of the apartment in question. While defendant was not found in that bedroom, he was observed by the police walking around the end of the solid wall on the same side of the apartment, behind which was a hallway leading to that bedroom and two others, placing him in close proximity thereto. Thus, the drug factory presumption of Penal Law § 220.25(2) was clearly applicable. The evidence warranted the conclusion that defendant was inside the apartment where the drugs were found in open view and was in close proximity thereto."), appeal denied, 98 N.Y.2d 698, 747 N.Y.S.2d 416 (2002); People v. Collado, 267 A.D.2d 122, 122-23, 700 N.Y.S.2d 148, 148 (1st Dep't 1999) ("The evidence likewise supported defendant's guilt under the `room presumption' theory. The court properly submitted that presumption to the jury since the drugs and paraphernalia were in `open view,' and since defendant was in `close proximity' to them, especially given the small size of the apartment."), appeal denied, 94 N.Y.2d 917, 708 N.Y.S.2d 357 (2000); People v. Miranda, 220 A.D.2d 218, 218, 631 N.Y.S.2d 840, 840-41 (1st Dep't) ("[T]he People's evidence established, beyond a reasonable doubt, that defendant knowingly exercised dominion and control over the cocaine recovered from the small, one-bedroom apartment defendant fled as the police were about to execute a search warrant. Based upon the People's proof that the cocaine was found in open view in a bedroom with an open door that was visible from other areas of the apartment, and that cocaine was next to a table containing an Ohaus scale, wrapping materials and a calculator — equipment used in preparing narcotics for sale — the trier of fact properly applied the `drug factory' presumption (Penal Law 220.25[2]) in concluding that defendant constructively possessed the illegal narcotics in the apartment. Defendant was in `close proximity' to the narcotics, as required by the statute."), appeal denied, 87 N.Y.2d 849, 638 N.Y.S.2d 607 (1995); People v. Rodriguez, 194 A.D.2d 634, 635, 599 N.Y.S.2d 46, 47 (2d Dep't) ("the trial court was correct in applying the statutory presumption of possession pursuant to Penal Law § 220.25(2) as the jury could reasonably conclude that the defendant, who was apprehended in the living room, was in close proximity to the narcotics found in open view in the bedroom and that the narcotics were being packaged for future distribution"), appeal denied, 82 N.Y.2d 758, 603 N.Y.S.2d 1001 (1993).

Here, as in prior cases, "the jury's `decision was largely a matter of choosing whether to believe [the defense's] version of the events or to believe the version offered by the State. The jury chose to believe the State's witnesses. . . . We cannot say that no rational [factfinder] could have found guilt beyond a reasonable doubt on all the evidence.'" Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *12 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (quoting Gruttola v. Hammock, 639 F.2d 922, 928 (2d Cir. 1981)); see cases cited at pages 25-27 nn. 16-19 above.

See also, e.g., Garcia v. Warden, Dannemore Corr. Facility, 795 F.2d 5, 6 (2d Cir. 1986) ("When the evidence, which we have merely highlighted, is viewed in the light most favorable to the State, it cannot be said that no rational trier of the fact could have found petitioner guilty beyond a reasonable doubt."); Ruiz v. Artuz, 99 Civ. 4476, 2002 WL 31045856 at *6 (S.D.N.Y. Jun. 13, 2002) ("Although there certainly was other evidence from which the jury could have concluded that [petitioner] was not guilty, the prosecution's case was unquestionably sufficient to sustain [petitioner's] conviction."); Huber v. Schriver, 140 F. Supp.2d 265, 277 (E.D.N.Y. 2001) ("[M]ost of petitioner's argument rests on the suggestion that the eyewitness testimony was not credible and should not have been given enough weight to result in his conviction. Petitioner specifically asserts that the testimony of the defense witnesses was more credible than that of [named witness] and the other prosecution witnesses. . . . However, under . . . federal law, issues of credibility, as well as the weight to be given to evidence, are questions to be determined by the jury . . ."); Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y. 1989) (habeas court "is not free to make credibility judgments about the testimony presented at petitioner's trial or to weigh conflicting testimony"); Milton v. Riley, No. 88 CV 2848, 1988 WL 140663 at *1 (E.D.N.Y. Dec. 16, 1988) (McLaughlin, D.J.) ("Questions of credibility, however, are not cognizable in a federal habeas corpus proceeding.").

Even if there had been major inconsistencies in the prosecution witnesses' testimony (which there was not), that would not change the result. See, e.g., United States v. Vasquez, 267 F.3d 79, 91 (2d Cir. 2001) ("The jury chose to believe the witnesses' testimony despite any inconsistencies. We will defer to the jury's assessment of credibility."), cert. denied, 534 U.S. 1148, 122 S.Ct. 1111 (2002); Gruttola v. Hammock, 639 F.2d at 928 (rejecting insufficiency claim, holding that jury was entitled to believe prosecution witnesses despite inconsistencies in their testimony); Means v. Barkley, 98 Civ. 7603, 2000 WL 5020 at *4 (S.D.N.Y. Jan. 4, 2000) ("The testimony of a single uncorroborated witness is sufficient to achieve a showing of guilt beyond a reasonable doubt . . . even if that witness's testimony is less than entirely consistent. . . ."). Indeed, the Second Circuit has held that "the testimony of a single, uncorroborated eyewitness is generally sufficient to support a conviction." United States v. Danzey, 594 F.2d 905, 916 (2d Cir.), cert. denied, 441 U.S. 951, 99 S.Ct. 2179 (1979). Thus, simply based on Officer Wells' testimony, a rational jury properly could have convicted Hediam.

See also, e.g., Jamison v. Grier, 2002 WL 100642 at *12-13 (inconsistencies in witness testimony does not make evidence insufficient); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *9 (S.D.N.Y. Jul.12, 2001) (Peck, M.J.); Carromero v. Strack, 98 Civ. 3519, 1998 WL 849321 at *5 (S.D.N.Y. Nov. 19, 1998) (Preska, D.J. Peck, M.J.) (evidence sufficient where jury credited prosecution witnesses' testimony "despite some inconsistencies between their trial testimony and prior statements to the police and to the grand jury"); Davis v. Senkowski, No. 97-CV-2328, 1998 WL 812653 at *5 (E.D.N.Y. Aug. 6, 1998) ("The jury here chose to believe [the prosecution witness]'s testimony despite any inconsistencies in the evidence, and I will not reassess that decision."); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *5 (S.D.N.Y. Apr. 20, 1998) (Baer, D.J. Peck, M.J.) ("Williams relies on inconsistencies in his victim's trial testimony as compared to her statements to the police, the District Attorney's office and before the grand jury. These inconsistencies were placed before the jury by the defense, which made them a central focus of its case. The jury's decision to credit [the victim]'s testimony, despite its inconsistencies, over Williams' testimony, is fully supported by the record."); Taxiarhopolous v. Spence, No. CV 92-0790, 1992 WL 403112 at *4 (E.D.N.Y. Dec. 28, 1992) (The petitioner "cannot show that the evidence was insufficient to support conviction. For example, he challenges the credibility of the main prosecution witness . . ., pointing to alleged inconsistencies in his testimony. This, however, was an argument made to, and properly resolved by, the trial jury.").

Finally, the Court notes that the Antiterrorism and Effective Death Penalty Act ("AEDPA") has further limited this Court's role in determining sufficiency of the evidence habeas petitions. See 28 U.S.C. § 2254(d). For a discussion of the AEDPA review standard and its applicability to sufficiency of the evidence cases, see, e.g., Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *12-13 n. 10, *15 n. 24 (S.D.N.Y. May 8, 2002) (Peck, M.J.) ( cases cited therein). This Court cannot say that the First Department's decision affirming Hediam's conviction was contrary to or an unreasonable application of established federal law or was based on an unreasonable determination of facts.

IV. COUNSEL WAS NOT INEFFECTIVE UNDER THE STRICKLAND v. WASHINGTON STANDARD FOR FAILING TO MAKE A MOTION TO SUPPRESS THE DRUGS

A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel

For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *13-14 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2002 WL 31307929 at *9-11 (S.D.N.Y. Oct. 15, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *16-19 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Jamison v. Berbary, 01 Civ. 5547, 2002 WL 1000283 at *9-11 (S.D.N.Y. May 15, 2002) (Peck, M.J.); Cromwell v. Keane, 98 Civ. 0013, 2002 WL 929536 at *15-17 (S.D.N.Y. May 8, 2002) (Peck, M.J.); Rivera v. Duncan, 00 Civ. 4923, 2001 WL 1580240 at *9 (S.D.N.Y. Dec. 11, 2001) (Peck, M.J.); Ennis v. Walker, 00 Civ. 2875, 2001 WL 409530 at *15-16 (S.D.N.Y. Apr. 6, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 144874 (2d Cir. June 28, 2002); Dukes v. McGinnis, 99 Civ. 9731, 2000 WL 382059 at *8 (S.D.N.Y. Apr. 17, 2000) (Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *16 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.); Lugo v. Kuhlmann, 68 F. Supp.2d 347, 370 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Santos v. Greiner, 99 Civ. 1545, 1999 WL 756473 at *7 (S.D.N.Y. Sept. 24, 1999) (Peck, M.J.); Franza v. Stinson, 58 F. Supp.2d 124, 133-34) (S.D.N.Y. 1999) (Kaplan, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 277 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Boyd v. Hawk, 965 F. Supp. 443, 449 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

In Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S.Ct. at 2064. This performance is to be judged by an objective standard of reasonableness. Id. at 688, 104 S.Ct. at 2064; accord, e.g., Bell v. Cone, 122 S.Ct. 1843, 1850 (2002).

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort 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. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted); accord, e.g., Bell v. Cone, 122 S.Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. at 2068-69. Put another way, the "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.

See also, e.g., Bell v. Cone, 122 S.Ct. at 1850; Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.), cert. denied, 519 U.S. 824, 117 S.Ct. 83 (1996).

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S.Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id. The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Id. at 697, 104 S.Ct. at 2069.

Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S.Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S.Ct. at 2066.

See also, e.g., Engle v. Isaac, 456 U.S. 107, 134, 102 S.Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to `indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to `second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S.Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard." Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001).

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant `clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)); see also, e.g., Bell v. Cone, 122 S.Ct. at 1852; Sellan v. Kuhlman, 261 F.3d at 315. "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also `clearly established.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 122 S.Ct. at 1852.

B. Application of the Strickland Standard to Hediam's Trial Counsel Ineffectiveness Claim

Hediam alleges that although the second bedroom and the contraband that it contained belonged to the boarder who lived there, Hediam "still had an expectation to privacy which society recognizes as reasonable." (Pet. ¶ 12(C) Attachment; Ex. L: Hediam § 440 Br. at 11-14.) Under this "expectation of privacy" theory, Hediam claims that his trial counsel should have moved to suppress the drugs and drug paraphernalia found in the second bedroom. (Ex. L: Hediam § 440 Br. at 13-14.)

In order to move to suppress the evidence found in the second bedroom, Hediam would have to have shown that he had a "legitimate expectation of privacy" in the premises searched. E.g., Rawlings v. Kentucky, 448 U.S. 98, 106, 100 S.Ct. 2556, 2562 (1980); United States v. Salvucci, 448 U.S. 83, 92, 100 S.Ct. 2547, 2553 (1980); Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430 (1978); see also, e.g., People v. Ramirez-Portoreal, 88 N.Y.2d 99, 108-09, 643 N.Y.S.2d 502, 506-07 (1996); People v. Wesley, 73 N.Y.2d 351, 358-59, 540 N.Y.S.2d 757, 761 (1989).

Throughout the state court proceedings (and continuing in his federal habeas petition), Hediam has maintained as an integral part of his defense that the police seized the drugs and paraphernalia from a locked bedroom that belonged to boarder Pedro Tavaris; Hediam's unwavering position was that he neither owned nor possessed the recovered contraband nor had access to the locked bedroom. If this was the case, Hediam would not have a legitimate expectation of privacy in the bedroom. It is well-settled that "[o]ne who alone occupies a room in a hotel or an apartment in an apartment house is deemed to have exclusive possession and control over those premises — at least for purposes of search and seizure in the criminal law — and no third party may consent to their being entered or searched by the police." People v. Wood, 31 N.Y.2d 975, 976, 341 N.Y.S.2d 310, 311 (1973); accord, e.g., Chapman v. United States, 365 U.S. 610, 616-18, 81 S.Ct. 776, 779-81 (1961) (landlord lacked authority to consent to warrantless search); United States v. Brown, 961 F.2d 1039, 1041 (2d Cir. 1992) (suppressing gun evidence because "a land[lord] is not ordinarily vested with authority to authorize a search of premises leased to a tenant"); People v. Ponto, 103 A.D.2d 573, 577, 480 N.Y.S.2d 921, 923-24 (2d Dep't 1984) ("The prevailing rule in this and a number of other jurisdictions is that the lessor of real or personal property lacks the requisite authority to consent to a warrantless search of the leased property."). As the trial court explained in denying Hediam's C.P.L. § 440 motion, "while [Hediam's] connection to his mother's home may have been sufficient to afford him standing to a general search of her home, under [Hediam's] version of the facts, he had no standing to contest the police search of the tenant's room." (Ex. O: 6/23/01 § 440 Decision at 4) (citations omitted). Because Hediam claimed that the second bedroom was rented by a boarder, who kept that room locked, Hediam could not have shown on a suppression motion that he had a legitimate expectation of privacy to the room sufficient to move to suppress.

On the other hand, had Hediam testified differently at a suppression hearing, that is, if he did not say the room was a locked room rented to a boarder, the police testimony that the evidence was in open, plain sight would have resulted in denial of the suppression motion. See, e.g., United States v. $557,933.89, More or Less, in U.S. Funds, 287 F.3d 66, 81-82 n. 11 (2d Cir. 2002) ("It is well-settled that, under the `plain view' doctrine, law enforcement personnel may seize an item without a warrant provided that it is `immediately apparent that the object is connected with criminal activity,' and further provided that the officers viewed the object from a lawful vantage point — i.e., that the officers have not violated the Fourth Amendment in arriving at the place from where they can see' the object."); United States v. Kiyuyung, 171 F.3d 78, 83 (2d Cir. 1999) ("Under the `plain view' exception, `if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of access to the object, they may seize it without a warrant.'") (quoting Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 2136-37 (1993)); United States v. Atherton, 936 F.2d 728, 733 (2d Cir. 1991) ("Once the agents made a lawful entry, the buy money was clearly subject to lawful seizure, since it was sitting in `plain view' on a table in front of the door."), cert. denied, 502 U.S. 1101, 112 S.Ct. 1187 (1992); United States v. Gomez, 633 F.2d 999, 1008 (2d Cir. 1980) ("Once the agents lawfully entered [defendant's] apartment, they were entitled to conduct a security check, `a very quick and limited pass through the premises to check for third persons who may destroy evidence or pose a threat to the officers.' The agents were justified in seizing items observed in plain view during the security check.") (citations omitted), cert. denied, 450 U.S. 994, 101 S.Ct. 1695 (1981). If Hediam thereafter testified at trial to the boarder/locked bedroom scenario, the prosecution could have impeached him with his suppression hearing testimony to the contrary. See, e.g., United States v. Geraldo, 271 F.3d 1112, 1116 (D.C. Cir. 2001) ("Sound tactical considerations weighed in favor of counsel's decision not to assert [defendant's] privacy interest in [an apartment]. If [defendant] had testified at the suppression hearing about his interest in the premises, his testimony could have been used to impeach him at trial if he took the stand."); United States v. Jaswal, 47 F.3d 539, 543-44 (2d Cir. 1995) ("Prior inconsistent suppression hearing testimony may properly be used to impeach a defendant during trial."); United States v. Montoya-Eschevarria, 892 F. Supp. 104, 106 n. 2 (S.D.N.Y. 1995) ("Although any sworn statement made by the defendant in support of his motion to suppress may not be used against him at trial on the issue of guilt, prior inconsistent suppression hearing testimony may be used to impeach the defendant during trial.") (citations omitted); People v. Brown, 98 N.Y.2d 226, 231-33, 746 N.Y.S.2d 422, 425-26 (2002) (trial court properly permitted defendant to be impeached on cross-examination at trial with prior inconsistent statements his former defense counsel made during a pretrial suppression hearing at which defendant was present). Since Hediam's primary defense, that the second bedroom door was closed and locked, essentially required him to testify at trial, making impeachment likely, Hediam's trial counsel strategically chose not to seek a suppression hearing. In fact, in a conversation with an Assistant District Attorney prior to Hediam's trial, Hediam's trial counsel "explained that he felt a motion for a Mapp hearing would be antithetical to his client's consistent contention that defendant never had any possessory or proprietary interest in the drugs or paraphernalia recovered. Defense Counsel Velez further stated that this was a strategical decision on his part prior to trial." (Ex. M: State § 440 Br., fourth page.) As the § 440 court found, "counsel's election to forego a Mapp hearing was not only a legitimate strategy, but practically the only one open to him under the circumstances." (Ex. O: 6/23/01 § 440 Decision at 4.) This Court agrees.

Hediam's counsel's strategic decision not to seek a suppression hearing did not constitute ineffective assistance of counsel under the Strickland standard, and more importantly, the state court's decision was not an "unreasonable application" of Strickland. Hediam's ineffective assistance habeas claim should be denied.

CONCLUSION

For the reasons discussed above, all three of Hediam's habeas claims should be denied and a certificate of appealability should not be issued.

Hediam v. Miller

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Hediam v. Miller

Hediam v. Miller

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Hediam v. Miller

Summary

Opinion

REPORT AND RECOMMENDATION

FACTS

ANALYSIS

CONCLUSION

Hediam v. Miller

Hediam v. Miller

Case Details

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