Opinion
No. 01-CV-1804, Related to 03-CV-2912.
June 16, 2004
MEMORANDUM, JUDGMENT ORDER
I. Introduction
A. Procedural History in Federal Court
The petition for a writ of habeas corpus was filed on March 21, 2001. An affidavit and memorandum of law in opposition was filed by respondent on July 13, 2004. The state court record was received on July 16, 2001. A hearing with petitioner present by telephone was held on October 4, 2001. No further hearing is required.
By memorandum and order of October 10, 2001 and judgment of November 26, 2001 the court issued a
judgment that petitioner take nothing of respondent; that the petition for a writ of habeas corpus is denied; that a Certificate of Appealability is granted on the issue of whether a detective's introduction of himself to the petitioner was, under the circumstances, an interrogation which led to petitioner's admission, and if so, whether it tainted his subsequent statement, after he was given his Miranda warnings; that the case is stayed and held open to permit an appropriate application in the state court; and that if the state proceeding is promptly started and the petitioner's claims are rejected, then the petitioner may promptly move to amend his present petition.
Petitioner filed a notice of appeal on November 26, 2001. The appeal was dismissed for lack of finality of the judgment, and the resulting lack of appellate jurisdiction by mandate filed here on June 17, 2002.
On September 5, 2003 the petitioner requested that the stay of proceedings in this court, while petitioner seeks to exhaust his remedies in state court, not be lifted. The court on September 24 ordered the case closed administratively with either side retaining the power to move to have the case reinstated.
On November 25, 2003, petitioner requested that the stay be lifted and a "final decision" entered. On December 5, 2003 the petitioner asked to have his request of November 25 withdrawn. The case was ordered reopened on December 30, 2003 "upon request of petitioner." Additional papers from petitioner on January 9, 2004 and from respondent on January 29, 2004, were filed. An amended petition and affidavit was filed on February 19, 2004.
On March 26, 2004 petitioner made a motion under the federal kidnaping act. This was related to his claim that he was improperly extradited.
On April 8, 2004, an affidavit on behalf of respondent was filed. On April 16, 2004, comprehensive papers and motion to dismiss was filed by respondent. A supplemental letter brief by petitioner in response to the defendant's motion was filed on May 3, 2004.
On May 21, 2004 petitioner requested that the court hold the petition in abeyance to allow time and an opportunity to exhaust and to obtain an attorney by assignment of the court. Both these applications are denied. The case has been fully presented, it is without substantial merit, appointment of counsel is not warranted, and the case should now be decided.
B. Facts and Procedural History in State Court
The record in the state court supports the following statement of facts and procedural history in the state courts.
On January 6, 1995, petitioner, Saul Angulo, and Enrique Rodriguez, Angulo's uncle or cousin, entered Alex Calle-Soto's and Esperanza Ramirez's apartment at 25-34, 120th Street in the College Point section of Queens. Petitioner was armed with a gun. Inside the apartment were Esperanza's daughters, seventeen-year-old Paola Lopez and fifteen-year-old Carla Lopez, and their friend, fifteen-year-old Melinda Wynns. Paola was five months pregnant. The men stayed in the apartment and waited for Alex to come home. Sometime later that night, another friend of the girls, eighteen-year-old Ana Figueroa, came to the apartment. Petitioner pointed the gun at her and brought her into a bedroom where she saw Paola, Carla, and Melinda sitting on the bed, crying.
Alex, Esperanza, and Alex's cousin, Paola, came to the apartment sometime after midnight. Petitioner and his accomplices brought Esperanza into the bedroom with the girls. Rodriguez stayed and watched the females, while petitioner and Angulo brought Alex and Pablo into another bedroom. Soon thereafter, Ana heard fighting and arguing coming from this bedroom, and then she heard the sounds of gunshots.
Petitioner and Angulo returned to the bedroom with the females and demanded that they search the apartment for money. Petitioner told Esperanza and the girls that Alex kept money in the apartment and they should look for it. They all began to look for money, but they did not find any. The females were returned to the bedroom.
Rodriguez took money and jewelry from the females. Petitioner and Rodriguez took Esperanza and Melinda out of that bedroom into another one. Petitioner also took Carla out of the bedroom and placed her in a bathroom, where she was tied up. Paola remained in the room; she was bound and gagged on the bed by petitioner and Rodriguez. Ana was also bound and gagged by them, and was placed in a closet in the same room.
Petitioner eventually removed Ana from the closet and took her into the living room. There, Angulo shot her in the head. After she was shot, Rodriguez cut her throat. She was shot once again, but she did not see who shot her. As Ana was losing consciousness, she could hear Paola crying from the bedroom. Ana eventually woke up to sounds coming from a television. She got up and exited out of a window onto the balcony. She then threw herself over the balcony railing, landing on the ground below. She went to an apartment building and knocked on the door. Eventually, the police and an ambulance were called and Ana was taken to the hospital.
After recuperating from emergency surgery to repair her trachea and voice box, Ana was interviewed by a detective. Unable to speak, she wrote on a piece of paper "6 more dead" and a portion of the address. The police went to the apartment where they found the dead bodies of Alex, Pablo, Paola, Carla, Melinda, and Esperanza in various rooms of the apartment. A few days later, while still in the hospital, Ana identified petitioner in a photo array.
Petitioner was not immediately apprehended. He had fled to Mexico. In February of 1995, Detective Jorge Sanchez went to Veracruz, Mexico, where he interviewed petitioner, who had been arrested there under an alias. After introducing himself and informing petitioner that the detective knew what had happened in College Point, petitioner admitted that he had killed the men, but said that he had not been involved in the murders of the women. Detective Sanchez had petitioner's handcuffs removed and immediately read petitioner his Miranda warnings, which petitioner waived. Petitioner then admitted his involvement in the murders in a written statement.
Petitioner was charged with eighteen counts of Murder in the Second Degree — six counts each of intentional, depraved indifference, and felony murder (N.Y. Penal Law § 125.25. [2], and [3]) — one count of Attempted Murder in the Second Degree (N.Y. Penal Law §§ 110.00/125.25[1]), ten counts of Robbery in the First Degree — five counts each of causing serious physical injury and armed with a deadly weapon (N.Y. Penal Law § 160.15 and [2]) — one count of Robbery in the Second Degree (N.Y. Penal Law § 265.03), one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02), and one count of Criminal Possession of a Weapon in the Fourth Degree (N.Y. Penal Law § 265.01) (Queens County Indictment Number 845/92).
Saul Angulo and Enrique Rodriguez were charged with the same crimes in the same indictment. Angulo and Rodriguez were tried together, but with separate juries. At the conclusion of the trial, Angulo was convicted of six counts of intentional second degree murder, one count each of attempted murder, first-degree robbery, second-degree weapon possession, and fourth-degree weapon possession. His judgment of conviction was affirmed on appeal. People v. Angulo, 697 N.Y.S.2d 631 (2d Dept. 1999).
Rodriguez was convicted of ten counts of second-degree murder, one count of attempted murder, five counts of first-degree robbery, and one count each of second-degree and fourth-degree weapon possession. His judgment of conviction was affirmed on appeal. People v. Rodriguez, 721 N.Y.S.2d 561 (2d Dept. 2001).
Petitioner moved in Supreme Court, Queens County, to suppress, among other things, the statements that he had made in Mexico to Detective Sanchez. After conducting an evidentiary hearing, the court denied petitioner's motion.
There was a jury trial in the Supreme Court, Queens County. At the beginning of the trial, on the People's motion, the court dismissed six counts of second-degree murder (depraved indifference), five counts of first-degree robbery (causing serious physical injury), the second-degree robbery count, the three first-degree assault counts, and the third-degree weapon possession count. Petitioner was convicted of twelve counts of second-degree murder (six counts intentional and six counts felony murder), attempted second-degree murder, five counts of first-degree robbery, second-degree weapon possession, and fourth-degree weapon possession.
Petitioner was sentenced to a total cumulative prison term of from 170 5/6 years to life. He was sentenced to six consecutive indeterminate prison terms of from twenty-five years to life for each of the intentional murder counts. He was also sentenced to six indeterminate prison terms of from twenty-five years to life for each of the felony murder counts, which were consecutive to each other, but concurrent to the sentence for the intentional murder counts. He was sentenced to a consecutive indeterminate prison term of from eight and one-third to twenty-five years for the attempted murder conviction. For four of the robbery counts, defendant was sentenced to concurrent indeterminate terms of from twelve and one-half to twenty-five years and to a consecutive term of from twelve and one-half to twenty-five years for the fifth robbery count. Finally, he was sentenced to a concurrent indeterminate term of from seven and one-half to fifteen years for the second-degree weapon possession count and to a concurrent definite term of one year for the fourth-degree weapon possession count.
In a brief, filed in March of 1999, on his direct appeal petitioner, through his counsel, argued that the trial court erred in denying his motion to suppress the statements that he had made in Mexico. Petitioner contended that the detective's preliminary remarks were the functional equivocal of an interrogation, and that petitioner's initial statement should therefore have been suppressed because it had not been preceded by Miranda warnings. He claimed that the written statement should have also been suppressed because it was part of a continuous interrogation that was tainted by the illegal initial statement.
In response, the prosecution argued that petitioner spontaneously made the initial inculpatory statement after the detective introduced himself and that there was nothing in the detective's preliminary remarks that was reasonably likely to have elicited such an incriminating statement from petitioner. And, because petitioner's initial statement was proper, it did not taint his subsequent written statement.
On October 12, 1999, the Appellate Division, Second Department, held that the hearing court properly denied petitioner's motion to suppress his initial statement to the police since the statement was voluntary and spontaneous and was not triggered by police conduct that should reasonably have been anticipated to evoke a statement from petitioner. The court held, since petitioner's initial statement was legally obtained, petitioner's argument that his second statement should have been suppressed because it was the fruit of the prior interrogation was academic. The court concluded that any error in the admission of the statements was harmless in light of the overwhelming evidence of petitioner's guilt, which included the testimony of the surviving victim, who had the opportunity to view petitioner over several hours during the commission of the crimes. People v. Isasi, 265 A.D.2d 426, 697 N.Y.S.2d 297 (2d Dept. 1999).
Petitioner sought leave to appeal the Appellate Division's decision to the New York Court of Appeals. Leave was denied.People v. Isasi, 94 N.Y.2d 863, 704 N.Y.S.2d 539 (1999).
In his original pro se petition for habeas corpus relief petitioner claimed, as he did in the Appellate Division, that his statements to the police were taken in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and Rhode Island v. Innis, 446 U.S. 291 (1988).
Petitioner is currently incarcerated on the conviction from which he is seeking habeas corpus relief.
Petitioner filed several New York FOIA requests and New York CPL 440 motions. They resulted in no ruling in petitioner's favor. In addition to his original Miranda claim, he now claims a Batson violation, denial of the right to counsel, improper extradition from Mexico, and, apparently, trial attorney ineffectiveness and his own incompetency. See Memorandum of Petitioner dated May 18, 2004, pp 6-8 (unnumbered). He also complains of this court's failure to supply him with copies of the state record. Id. at 7-8. While arguably some of the claims have not been exhausted or are barred, their lack of merit warrants denial of the petition at this time. After further exhaustion a second petition in the Court of Appeals for the Second Circuit might be appropriate, but this court takes no position on that issue.
In a related action in this court, Isasi v. U.S. Government, et al. 03 CV 2912, petitioner sued the United States, the State Police of New Jersey, the United States Marshal, the New York Police Department, the Governor of New York, a judge, a district attorney and a lawyer. He alleged violation of his rights by his extradition of September 1997 from Mexico to New York. The court dismissed the case for the following reasons:
Upon reviewing the numerous submissions from both plaintiff and defendants, the Court dismisses the instant action for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff alleges that his constitutional rights were violated during his extradition by officials who denied him (1) access to documents relevant to his extradition and (2) the opportunity to communicate with other individuals. Mot. to Vacate ¶ 17. However, plaintiff's allegations fail to demonstrate that any of his constitutional rights were violated. See Burks v. Nassau County Sheriff's Dep't, No. 03 CV 0645 (ADS)(ARL), 2003 WL 22326520, at (E.D.N.Y. Oct. 11, 2003) (§ 1983 claims dismissed under Rule 12(b)(6) and 1915(e), as plaintiff failed to establish that defendants' conduct amounted to a constitutional violation). As this Court held in its July 17, 2003 Order, "defects in the manner in which jurisdiction is obtained over the person of a defendant do not generally rise to the level of a due process violation." Isasi v. U.S. Gov., et al., 03-CV-2912 (ERK) (citing Matter of Extradition of Atta, 706 F.Supp. 1032, 1037 (E.D.N.Y. 1989)); see also United States ex. rel. Moore v. Martin, 273 F.2d 344, 345 (2d Cir.), cert denied, 363 U.S. 821 (1960) (defendant's constitutional rights were not violated by his arrest in Florida and his transportation to Pennsylvania against his will and without any extradition hearing). Therefore, plaintiff's claims that defendants violated his constitutional rights claims are dismissed for failure to state a claim upon which relief can be granted. 28 U.S.C. § 1915(e)(2)(B)(ii); Fed.R.Civ.P. 12(b)(6).
Moreover, plaintiff's instant complaint, even if it alleged defendants' conduct amounted to a constitutional violation, would be barred on statute of limitations grounds. In New York, the statute of limitations for bringing a civil rights action is three years. Owens v. Okure, 488 U.S. 235, 251 (1989). All the events related to plaintiff's extradition and conviction occurred in 1997 and 1998. Plaintiff filed the instant complaint in June 2003. Therefore, even if plaintiff had stated a claim upon which relief could be granted, his claims would be barred by the statute of limitations.
Memorandum and Order of "10/31/03." The court certified that any appeal from this order would be taken in bad faith.
This court in a decision in the instant case before petitioner's 440 applications proposed to dismiss with a certificate of appealability, writing as follows (October 10, 2001):
III. Facts
Petitioner was in handcuffs in a Mexican police office. A detective from the New York Police Department informed petitioner that he was there to talk to him about an incident that occurred in College Point, New York in January 1995. The detective stated that he knew what had happened and that he knew petitioner's real name. Petitioner lowered his head and placed it on the desk for a few moments. He then raised his head and stated in Spanish (repeating it in English) that he had killed the two men, but that he had not done anything to "those girls."
IV. Application of the Law to the Facts
The state hearing was adequate. The conclusions of the trial court were supported by the evidence. No violation of any federal right was proved.
The application of established relevant Supreme Court precedents was reasonable. See Miranda v. Arizona, 384 U.S. 436 (1966); Rhode Island v. Innis, 466 U.S. 291 (1980). See also 28 U.S.C. 2254(d)(1), (2); 2254(e)(1); Williams v. Taylor, 529 U.S. 362 (2000).
V. Conclusion on Miranda Claim
The Miranda issue raised in the present petition will be dismissed.
VI. Certificate of Appealability on Miranda Claim
A certificate of appealability will be granted on the issue of whether a detective's introduction of himself to petitioner was, under the circumstances, an interrogation which led to petitioner's admission and, if so, whether it tainted his subsequent statement after he was given Miranda warnings. United States v. Perez, 129 F.3d 259-60 (2d Cir. 1997).
This court adheres to the view it expressed on the Miranda issue by its order of October 10, 2001.
In a motion pursuant to section 440.10 of the New York Criminal Procedure Law, dated December 6, 2002, petitioner moved to vacate his judgment of conviction, claiming that (1) New York State never had jurisdiction over him because his extradition from Mexico was based only on a violation of New Jersey law and (2) his attorney was ineffective for failing to investigate the circumstances of petitioner's extradition from Mexico.
On March 6, 2003, the Supreme Court, Queens County, denied petitioner's motion to vacate his judgment of conviction. The court made findings of fact. It found that, initially, the United States requested petitioner's extradition from Mexico to New Jersey for two separate gunpoint robberies and an escape from prison. Later, the court determined, the United States expanded its extradition request to seek petitioner's extradition from Mexico to New York to be prosecuted in this case for his participation in the College Point murders. The court denied the motion because: 1) it was devoid of any facts and was based only on petitioner's own conclusory allegations; 2) it was refuted by unquestionable documentary proof, including a letter from the United States Attorney's Office, a Governor's Warrant, which requested petitioner's return to New York, and a diplomatic note from the United States Embassy concerning extradition between Mexico and Queens County; and 3) under these circumstances, there was no reasonable possibility that petitioner's allegations were true. See N.Y. Crim.Pro.L. § 440.30(1), (4)©)) and (d)(ii). Finally, the court denied petitioner's claim that his attorney was ineffective for failing to challenge petitioner's extradition as improper because, based on the documents submitted with the state's response to the motion, it was evident that his extradition to New York was proper.
On April 6, 2003, petitioner moved, pro se, in the Appellate Division for leave to appeal from the trial court's denial of his motion to vacate his judgment of conviction. In his motion, petitioner claimed that his extradition from Mexico to New York was improper because New York never petitioned to have him extradited from New Jersey to New York.
On June 11, 2003, the Appellate Division denied the motion for leave to appeal. On July 9, 2003, petitioner moved, pro se, for leave to appeal to the New York Court of Appeals the Appellate Division's denial of his leave application. On August 1, 2003, the Court of Appeals dismissed petitioner's application.
In a letter dated July 31, 2003, petitioner moved once again to vacate his judgment of conviction. In his application, petitioner raised the same claim that he raised in his initial motion to vacate his judgment of conviction — that he was improperly extradited from Mexico to New York.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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) resulted in a decision that 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).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "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." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug. 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Berbary v. Torres, No. 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); see also Sup. Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ` properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is `pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp. 2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "`not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and 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. See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with `that fundamental fairness' which is `essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been `crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
X. Verdict Against the Weight of the Evidence
To the degree petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court 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. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
XI. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XII. Analysis of Claims
A.
While the new claims do not relate back to the original petition and are untimely under AEDPA, they will be treated as timely for this analysis. They have no substantive merit.
B.
Extradition claims were considered by this court and properly rejected on the merits. The documentary proof adequately supported extradition to New York. Even if the papers were defective. "Nothing in the Constitution requires a court to permit a guilty person rightfully convicted to escape justice because he was brought to trial against his will," even if he was brought to the court by "forcible abduction." Frisbie v. Collins, 342 U.S. 519, 522 (1951); see Kerr v. Illinois, 119 U.S. 436, 444 (1886) (power of a court to try a person for a crime is not impaired by the fact that he was brought within the court's jurisdiction by a "forcible abduction"); United States v. Reed, 639 F.2d 896, 902-03 (2d Cir. 1981) (defendant's abduction from another country neither violated due process nor usurped the court's jurisdiction to try him).
This claim has no merit.
C.
Counsel need not be present at a lineup.
In this case, Ana Figueroa, the living victim, unequivocally identified petitioner as one of the men who had held her and her friends captive (Figueroa: 713-714). She had ample opportunity to remember petitioner, not only because of the atrocities that she suffered at the hands of petitioner and his accomplices, but because of the lengthy period which petitioner and his cohorts were in the apartment and the amount of time that she had to see his face as he threatened her and her girl friends. Petitioner had no reason to hide his face during his invasion of the apartment because apparently neither he nor his accomplices had planned on leaving any witnesses alive. She had no doubt that petitioner was the man who had pointed the gun at her as soon as she entered the apartment that night (Figueroa: 697), had taken Alex and Pablo at gunpoint into a bedroom as soon as they entered the apartment (Figueroa: 702), had helped tie her up (Figueroa: 704), had taken Esperanza and Melinda into Carla's bedroom (Figueroa: 704), had taken Carla into the bathroom (Figueroa: 704), had taken her jewelry (Figueroa: 708), and had stood there while one accomplice shot her and the other cut her throat (Figueroa: 709).
Her testimony was buttressed by petitioner's actions that evinced a consciousness of his guilt. For example, petitioner's flight to Mexico so soon after the slayings suggested that he had something to hide and had reason to leave New York. The jury had ample reason to infer that that reason had to do with something that petitioner had done with both of his accomplices because when petitioner was eventually returned to New York, the first thing he asked the detective about was the fate of his co-defendants.
Even were counsel required at the lineup, no added protection would have been received by defendant. The case against him was too strong.
This claim has no merit.
D.
There is nothing in the record to support any Batson claim. The transcript reveals a fair inquiry by the judge and a good presentation by the defense counsel at the voir dire. The attorneys appeared sensible and selected what appears to have been a reasonable jury. See transcript of voir dire, pp. 15-373. No sustainable Batson challenge appears from the record.
This claim has no merit.
E.
Although petitioner appears to claims that he received ineffective assistance of counsel, he has not provided the Court with any basis for this claim. He simply states, "Ineffective Assistance of Counsel, therefore, after a finding of a series of constitutional violations, the Petitioner in filing a complaint with the Bar association and the State of New York Grievance against trial Counsel, accordingly petitioner humbly asks the Court review the records of one Louis Romaine, Investigator assigned to his case." See Petition at unnumbered page 7-8. Nowhere in this passage does petitioner state what aspect of counsel's conduct denied petitioner the right to effective assistance.
An examination of the trial record indicates that counsel tried the case well. The evidence, not incompetency of counsel, resulted in conviction. The pretrial hearing, voir dire, opening cross-examination of prosecution witnesses and summation were sound. This claim has no merit. Nor would there be any merit to a claimed inadequacy of appellate counsel.
F.
There is no basis in the record for a claim that petitioner was incompetent. See, e.g., record of Feb. 9 at p. 4. His reactions in fleeing and in his relationship to the police after he was apprehended was rational.
This claim has no merit.
G.
No additional assistance from this court could have helped petitioner.This claim has no merit.
H.
No other possible argument is more than frivolous.
XIII. Conclusion
The petition is dismissed. A certificate of appealability is granted only on the Mexican Miranda issue. Petitioner may seek a further order of appealability from the Court of Appeals for the Second Circuit.