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holding one of the petitioner's claims unexhausted where he argued certain claims at length and, with regard to the unexhausted claim, stated only, "'In sum, for the reasons set forth above and in [the petitioner's] briefs submitted along with this letter application, this [c]ourt should grant leave to appeal on each and every claim raised'"
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No. 01 Civ. 5547 (RMB) (AJP).
May 15, 2002
REPORT AND RECOMMENDATION
To the Honorable Richard M. Berman, United States District Judge
Pro se petitioner Adam Jamison seeks a writ of habeas corpus from his 1995 conviction in Supreme Court, Bronx County, for robbery, grand larceny and possession of stolen property, for which he was sentenced to nine to eighteen years imprisonment. (Dkt. No. 2: Pet. ¶¶ 1-5.) Jamison's petition alleges that: he was denied effective assistance of trial counsel by defense counsel's offensive remarks to prospective jurors during voir dire, counsel's failure to raise a speedy trial claim, and counsel's failure to object to improper identification testimony (Pet. ¶ 13); he was denied due process because he never received complete pretrial and trial transcripts, preventing him from succeeding on appeal (Id.); and the prosecution continually withheld and destroyed exculpatory evidence and the state courts are "purposely delay[ing]" decision on his C.P.L. § 440 motion (Id.); see also Dkt. No. 4: Jamison 7/18/01 Br. at 13).
For the reasons set forth below, Jamison's petition should be DENIED.
FACTS
The April 8, 1993 Robbery
On April 8, 1993 at approximately 8:00 p.m., Adam Jamison and two others approached Tyronne Randolph at the 174th Street subway station in the Bronx and robbed him. (Ex. 18: State 1st Dep't Br. at 5.) Although Randolph attempted to fight back, the men snatched a chain and crucifix off his neck and fled through the subway tunnel. (Id. at 5-6.)
Exhibits are those attached to the October 10, 2001 Affidavits of Assistant District Attorney Claris R. Sukkar (Dkt. Nos. 23-24.)
The trial transcripts have been inadvertently lost, and the State's diligent efforts to locate the trial transcripts have been largely unsuccessful, resulting in only excerpts of the trial proceedings. (See Dkt. No. 15: 12/5/01 ADA Sukkar Letter to the Court.) However, Jamison did not dispute what transpired at trial (compare Dkt. No. 4: Jamison 7/18/01 Br. at 2-42 (especially at page 40, where he refers to the State's delay in providing transcripts to his appellate counsel) Dkt. No. 14: Jamison 10/29/01 Supp. Br. at 4-28 with Dkt. No. 23: State Br. at 6-45), until recently in his post-reply brief to this Court, where he alleged that the missing trial transcripts would prove that there was a reasonable doubt that an armed robbery occurred (see Dkt. No. 25: Jamison 12/4/01 Supp. Br. at 6-8). This argument has not been raised in any state proceedings and therefore may not be considered on this habeas petition, particularly when so belatedly and indirectly raised.
For the issues presently before the court, neither party alleges that the relevant excerpts cited and/or quoted in the state court briefs and the briefs before this Court do not accurately reflect what transpired at trial. (See Jamison 12/4/01 Supp. Br. at 6-8). Therefore, the Court will rule on the current habeas petition based on the relevant documents, such as state court opinions, trial transcript excerpts submitted and quoted by the parties, and the arguments and statements in the parties' briefs, affidavits and other documents submitted to this Court.
Randolph found two police officers in the subway station who radioed for assistance. (State 1st Dep't Br. at 6; Wade Hearing Transcript ["H."] 6.) Four police officers, who were four blocks away, responded to the call by proceeding toward the 174th street subway and saw Jamison and another man emerging from an emergency exit gate from the subway tunnel. (State 1st Dep't Br. at 6-7; H. 6-8, 17-18.) The police arrested Jamison and noticed that he was holding a chain and crucifix, which Randolph identified as his. (State 1st Dep't Br. at 7, 9; H. 9-10, 23-24, 468.) Randolph could not see Jamison's face in the police car, but he recognized that Jamison was wearing the same jacket worn by one of the perpetrators. (State 1st Dep't Br. at 9; H. 205-06, 458-61, 469-70.)
Jamison was charged with robbery in the first and second degrees, fourth degree grand larceny and fifth degree possession of stolen property.
United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684 (1961).
A combined Wade/Mapp hearing was held from October 25 through November 7, 1994, regarding all three defendants suspected of being involved in the April 8, 1993 robbery. (H. 2.) One of the issues at the hearing was the admissibility of Randolph's out-of-court identification of Jamison immediately following Jamison's arrest. (Dkt. No. 4: Jamison 7/18/01 Br. at 2.) Detective Ayala testified at the hearing about the "show up" of Jamison, as follows:
Q. Was [Jamison] ever identified as the perpetrator of a crime at [the] time [of the arrest]?
A. A show up was not positive at that point.
Q. Was [Jamison] identified as a perpetrator of a crime at that time?
A. No.
(H. 205-06; see also H. 458-61, 469-70, 477-78.) As a result of officer Ayala's testimony that there was no out-of-court identification, the prosecution withdrew identification notice. (H. 315-18, 508; see also Ex. 17: Jamison 1st Dep't Br. at 2.) The prosecution represented at the hearing:
"Identification notice," required under C.P.L. § 710.30(1)(b), is notice that the prosecution intends to offer at trial the testimony of an eyewitness that he had previously identified the defendant out of court. Section 710.30(1)(b) provides:
Whenever the people intend to offer at trial . . . testimony regarding an observation of the defendant either at the time or place of the commission of the offense or upon some other occasion relevant to the case, to be given by a witness who has previously identified him as such, they must serve upon the defendant a notice of such intention, specifying the evidence intended to be offered.
[B]ased upon my assessment of the case and interviews with the complaining witness and officers involved in the case, I think it is clear that no point out identification was executed in reference to defendant Jamison on April 8th, 1993 and that consequently as a result of my investigation of the case, the People will be making a circumstantial case against defendant Jamison as opposed to an in-court identification by the complainant.
The People are prepared to produce identification testimony of Officer Ayala identifying defendant Jamison, however, the complainant will not be able to identify Adam Jamison in court.
* * * *
Your Honor, I believe 710.31(B) [sic] Notice was served in reference to defendant Jamison. At this time the People will revoke that notice.
THE COURT: It is withdrawn.
At the conclusion of the hearing, the prosecutor reiterated:
It was never an issue the identification of Adam Jamison. It was always conceded by the People that the complaining witness in this case was not going to identify Adam Jamison. That issue wasn't even litigated here because we withdrew notice of that. . . .
. . . The People have always maintained [that] the case against Jamison is going to be circumstantial.
(H. 508-09.)
Defense counsel recognized the prosecution's withdrawal of identification notice and moved to suppress the evidence seized from Jamison at the time of his arrest:
Initially, a motion to suppress identification was also made for Mr. Jamison, but a 710.31(B) [sic] Notice as to my client was withdrawn. And I understand clearly from [the prosecutor] and from the complaining witness that there would be no in-court identification of my client as a perpetrator.
I'm not going to argue the Wade issue to you, but as to the Mapp issue, I would move, again, that all physical evidence recovered from my client be suppressed on the basis that the police officer who sees a civilian and the seizure of physical evidence recovered had no probable cause to make an arrest of him on the evening in question.
(H. 512-13; see also H. 517.) The trial court denied Jamison's motion to suppress physical evidence. (See Ex. 18: State 1st Dep't Br. at 4.) The prosecution never reinstated identification notice. (See Ex. 17: Jamison 1st Dep't Br. at 4-5.)
Jury Selection
Jury selection began on November 7, 1994. Five jurors were sworn from the first voir dire round. (Dkt. No. 23: State Br. at 10.) Those five jurors were present during the second round, when Jamison's court-appointed defense counsel engaged in the following dialogue with certain venire persons:
[Defense Counsel]: . . . [W]hen you were asked before by the judge about being a victim of a crime, or if you knew someone who was a victim of a crime, you described the situation as hopeless. Can you tell us, how do you feel about that? Why do you feel the situation is hopeless?
Ms. Flores: Because she wasn't hurt. And I thought the prospect of catching the person was hopeless. Not that it wasn't worth the effort. But because she wasn't hurt.
[Defense Counsel]: You felt she wasn't hurt, so it wasn't worth investigating it, it wasn't worth following up on it?
Ms. Flores: Yes.
[Defense Counsel]: Do you feel if you are chose[n] to sit on this jury that you might use the opportunity as a juror to obtain justice because of what happened to you or your family member? Don't nod your [head] because the reporter can't take that down. Do you understand my question?
Ms. Flores: I wouldn't feel that way.
[Defense Counsel]: Do you understand the question I'm asking you?
Ms. Flores: Yes.
[Defense Counsel]: You're not going to use this as an opportunity to get retribution for what happened to you or your family member?
Ms. Flores: No.
[Defense Counsel]: You could be fair? You are not going to convince us and tell us it's okay if you don't feel you can be fair?
Ms. Flores: I'm ambivalent.
[Defense Counsel]: Your body language suggests you are not really sure. Is that a fair statement?
Ms. Flores: Yes.
[Defense Counsel]: You don't think you could keep an open mind?
Ms. Flores: I have the attitude in a sense that certain crimes are not going to be followed up on. There's lots of it going on. There are lots of robberies, and lots of people getting away with it. And it's rampant.
[Defense Counsel]: So you might use this opportunity to obtain retribution?
Ms. Flores: I don't know. But I know it's getting hopeless.
[Defense Counsel]: How about the system. You feel it's a waste of time to serve on the jury?
Ms. Flores: I would hope not. But a lot of time it seems that way.
[Defense Counsel]: Is there anyone who feels it's a colossal waste of time, they would rather be someplace else? Is there anyone who feels that way, that it's a waste of time? Ms. Wise [another potential juror], you feel that way?
Ms. Wise: Yes.
[Defense Counsel]: Why?
Ms. Wise: I think the legal justice system — I don't know if it's politics. I don't know if it's economics. But I don't think it's fair.
[Defense Counsel]: I'm sure there are some people in this courtroom who would agree with you. But why do you feel it's a waste of time to serve jury service?
Ms. Wise: I just feel it's a waste of time.
[Defense Counsel]: You don't think you could keep an open-mind?
Ms. Wise: Not really.
[Defense Counsel]: Does anyone else feel that rather unfortunate view? Is there anyone else who feels this is a hopeless cause, that they shouldn't be here? Is there anyone who just doesn't want to be here because they feel it's a waste of time? If there is anyone else who feels that way, just tell us now, please. And don't waste our time. Is there anyone else who feels that way?
(State Br. at 10-11, quoting VD 330-34.)
After apparently receiving no response, defense counsel continued to question the panel, and many potential jurors stated they could be fair and would hold the People to their burden of proof. (State Br. at 11, citing VD 334-38.) Defense counsel continued to question jurors on their views:
[Defense Counsel]: And since we are all airing our views about the value of our justice system. Does anyone feel that it's probably a waste of time or mistake to be here? How about you [potential juror] Ms. Goldberg?
Ms. Goldberg: No.
[Defense Counsel]: You think that's okay?
Ms. Goldberg: Yes.
[Defense Counsel]: Can you follow the Judge's instructions to you?
Ms. Goldberg: To the best of my ability that I'm capable of, sure.
[Defense Counsel]: You feel you can do that?
Ms. Goldberg: I just feel that you're sort of angry when you're talking to us. Your tone of voice is — I don't know. I'm not on trial.
[Defense Counsel]: What makes you think I'm angry?
Ms. Goldberg: Just by your body language, your tone of voice and your actions. In my mind, I feel you're angry. I can't speak for everybody else. I'm trying to be as candid as I can. You seem to be irritated — or maybe I'm interpreting your behavior to be that you are angry.
[Defense Counsel]: I appreciate your honesty, your forthright honesty. I just feel there are so many people on this panel who feel it's a waste of time to be here. We are all productive citizens here. We are all human beings. And even though we have all been, or may have been victims of a crime, and even though we all have problems, we have to be open-minded. That's why I'm ticked off. Quite honestly. I have never seen a panel of prospective jurors in one group who are so sub-par.
[Co-defendant's Counsel]: Objection.
Ms. Wise: I'm not sub-par. You're sub-par. Don't call me sub-par.
[Defense Counsel]: Is there anyone else who feels they can't be fair in this case?
(State Br. at 11-12, quoting VD 330-34, 338-39, emphasis added.)
Ms. Flores, Ms. Goldberg and Ms. Wise were excused for cause on consent of all parties. (State Br. at 12-13, citing VD at 362-71.) All jurors who ultimately served on the panel were in the courtroom at the time of defense counsel's outburst that the panel was "sub-par," but stated they could be fair. (State Br. at 10, 12-13, citing VD 340, 343, 347-57, 360, 363-71.)
Trial
Defense counsel in his opening statement on November 17, 1994 at the start of trial (see Ex. 22: 7/13/98 Stapleton Letter at 2) apologized to the jury, stating: "I apologize for my outburst on Tuesday. It was wrong of me, and I'm sorry. If I offended you, I'm very sorry. Please forgive me." (Dkt. No. 23: State Br. at 14, quoting Trial Transcript ["Tr."] 391.)
At trial, Randolph positively identified Jamison and testified on cross-examination that he "identified Mr. Jamison at a street show-up based on Mr. Jamison's clothing." (Ex. 17: Jamison 1st Dep't Br. at 5, citing Tr. 454.) Defense counsel moved for a mistrial alleging violations of both C.P.L. § 710.30(1)(b) and due process, arguing that the prosecution improperly presented identification evidence without notice. (Ex. 17: Jamison 1st Dep't Br. at 5, citing Tr. 505-07, 509.) The trial court denied the motion, holding that Randolph's testimony did not sufficiently establish that an out-of-court identification had occurred and therefore there was no violation of C.P.L. § 710.30(1)(b). (Jamison 1st Dep't Br. at 6, citing Tr. 519-22.)
Verdict and Sentence
Jamison was convicted on all counts and sentenced, as a mandatory persistent felony offender, to concurrent sentences of twenty years to life on the first degree robbery count, fifteen years to life on the second degree robbery count, ten years to life on the grand larceny count, and a definite one year term on the possession of stolen property count. (Dkt. No. 23: ADA Sukkar Aff. ¶ 5; 9/27/95 Sentencing Transcript 22-23.) Jamison's sentence subsequently was reduced. (See page 12 below.)
Jamison's First C.P.L. § 440 Motion
On October 6, 1995, Jamison, pro se, moved to vacate the judgment pursuant to C.P.L. § 440, arguing in relevant part that his counsel was ineffective on multiple grounds. (Ex. 1: Jamison 10/6/95 C.P.L. § 440 Motion; see also Dkt. No. 23: ADA Sukkar Aff. ¶ 7.) Specifically, Jamison alleged that he was prejudiced by trial counsel's opening statement, cross-examinations, summation, failure to make a speedy trial objection, off-the-record sarcastic comments, offensive behavior during voir dire, failure to interview certain witnesses, and failure to appear in court on one occasion. (Ex. 1: Jamison 10/6/95 C.P.L. § 440 Motion, Jamison Aff. ¶¶ 7-17, 20-34.) The trial court denied all of Jamison's ineffective assistance claims, holding that either his claims were matters of record that should be raised on direct appeal, or that the "defendant did not demonstrate that his prior attorney failed to provide meaningful representation given the evidence, the law and the circumstances of the case, viewed in their totality as of the time of representation." (Ex. 3:11/27/95 Order at 2; see ADA Sukkar Aff. ¶ 8.)
Consolidation of Jamison's Appeal
On or about October 3, 1995, Jamison filed a notice of direct appeal. (Dkt. No. 23: ADA Sukkar Aff ¶ 6.) On March 14, 1996, the First Department granted Jamison leave to appeal the denial of his C.P.L. § 440 motion and consolidated it with Jamison's direct appeal. (ADA Sukkar Aff. ¶ 9; Ex. 4: 3/14/96 1st Dep't Certificate Granting Leave.)
Jamison's First Motion to Obtain the Pretrial and Trial Transcripts
On May 14, 1997, Jamison's newly-appointed appellate attorney moved for an extension of time to file his direct appeal and submitted an application for an order directing the Clerk of the Supreme Court to provide the transcripts of certain pretrial and trial proceedings. (Dkt. No. 23: ADA Sukkar Aff. ¶ 11; Ex. 7: Jamison 5/14/97 Notice of Motion.) On June 12, 1997, the First Department ordered the Clerk to provide the transcripts within thirty days and gave counsel 120 days after receipt of those minutes to perfect Jamison's appeal. (ADA Sukkar Aff. ¶ 12.)
Jamison's Second C.P.L. § 440 Motion
On May 22, 1998, before the First Department ruled on Jamison's appeal, Jamison filed a second pro se motion under C.P.L. § 440 to vacate his conviction, alleging that: the grand jury never issued an indictment, there was prosecutorial misconduct amounting to "misrepresentation and/or fraud," and the prosecution intentionally withheld documents during discovery. (Dkt. No. 23: ADA Sukkar Aff. ¶ 13; Ex. 8: Jamison 5/22/98 Second C.P.L. § 440 Motion.) Jamison also argued that the court should set aside his sentence pursuant to C.P.L. § 440.20, since he was not a persistent violent felony offender. (Id. at 37-45.) The prosection conceded that Jamison was improperly sentenced as a persistent violent felony offender, but opposed the balance of Jamison's motion. (ADA Sukkar Aff. ¶ 14; Ex. 9: 9/23/98 State Response to C.P.L. 440 Motion, Br. at 9-11.)
On October 20, 1998, the trial court held that Jamison's grand jury claims were barred by C.P.L. § 440.10(2)(b) because they could be raised on appeal, and that there was insufficient proof that the prosecution intentionally withheld evidence. (ADA Sukkar Aff. ¶ 15; Ex. 10: 10/20/98 Order.) The trial court granted Jamison's motion to set aside his sentence, and Jamison was resentenced on January 20, 1999 to concurrent terms of nine to eighteen years imprisonment for first degree robbery, six to twelve years for second degree robbery, one-and-a-half to three years for grand larceny, and one year for possession of stolen property. (ADA Sukkar Aff. ¶¶ 15-16; see also Pet. ¶ 4.)
Jamison's Second Motion to Obtain Transcripts
On April 15, 1999, having not received the requested transcripts, Jamison's counsel filed a second motion in the First Department seeking the trial transcripts. (Dkt. No. 23: ADA Sukkar Aff. ¶ 17; Ex. 11: Jamison 4/15/99 Motion.) The First Department granted the motion on June 18, 1999, directing the Clerk to provide the requested transcripts within 30 days, and also granted Jamison additional time to complete his appeal. (ADA Sukkar Aff ¶ 17; Ex. 14: 6/8/99 1st Dep't Order.)
Jamison's State Habeas Corpus Petition
On October 23, 1999, Jamison filed a pro se state habeas corpus petition, claiming that the delay of his direct appeal due to the missing transcripts constituted illegal detainment. (Dkt. No. 23: ADA Sukkar Aff. ¶ 18; Ex. 15: Jamison 10/23/99 State Habeas Petition.) On November 26, 1999, the Supreme Court, Erie County, denied the petition as procedurally improper. (ADA Sukkar Aff. ¶ 18; Ex. 16: 11/26/99 Order.)
Jamison's Direct Appeal
Jamison's counsel's December 14, 1999 brief to the First Department alleged that: he "was denied the adequate and effective assistance of trial counsel and deprived of his right to a fair trial and due process of law where counsel disparaged the jury and where such conduct was not part of a reasonable trial strategy" (Ex. 17: Jamison 1st Dep't Br. at 15-21 Jamison 1st Dep't Reply Br. at 1-4); the "surprise in-court identification and testimony of the out-of-court identification violated [his] rights to a fair trial and due process of law" and violated C.P.L. § 710 (Jamison 1st Dep't Br. at 21-36; Jamison 1St Dep't Reply Br. at 13-17); and, "the indictment should be dismissed because missing transcripts prevent [Jamison] from advancing a meritorious claim of ineffective assistance of counsel for the failure to move for a speedy trial dismissal; alternatively, a reconstruction hearing should be ordered to recreate the record in furtherance of the claim" (Jamison 1st Dep't Br. at 36-42; Jamison 1st Dep't Reply Br. at 5-13).
On May 30, 2000, the First Department unanimously affirmed Jamison's conviction, holding:
Jamison was not deprived of meaningftd representation by his counsel's isolated intemperate remark during voir dire concerning certain venire persons with whom counsel was displeased. In context, this remark was not directed at the entire panel, but at particular members, all of whom were excused for cause. Jamison's claim that counsel offended the entire panel to his client's detriment is unsupported by the record. We further conclude the existing record establishes that Jamison's counsel, after careful consideration, made an appropriate determination that a speedy trial motion would be unavailing.People v. McCorkle, 272 A.D.2d 273, 274, 709 N.Y.S.2d 519, 520-21 (1st Dep't 2000). The First Department also held that the identification claim was unpreserved and without merit, and that his remaining claims were "unpreserved or unreviewable." Id. at 274-75, 709 N.Y.S.2d at 521.
The First Department held:
Since defendant Jamison did not object or move to strike, and instead made extensive use on cross-examination of the allegedly offending testimony, his belated mistrial motion failed to preserve his claims that the unexpected in-court identification of Jamison by the complainant, made after the People had maintained that the complainant was unable to identify him, violated CPL 710.30(1)(b) and caused him unfair surprise. We decline to review these unpreserved claims in the interest of justice. Were we to review them, we would find that Jamison was not entitled to a mistrial. There was no violation of the notice requirement, because, as the record establishes, the complainant never made an out-of-court identification. While there was some confusion as to what occurred at the showup, it is clear that, as a result of Jamison's body movements in the police car, the complainant did not see Jamison's face and identified him solely on the basis of his clothing. Jamison was not prejudiced by the unexpected identification, since his counsel vigorously cross-examined the complainant and exploited all the relevant circumstances to his advantage. In any event, there was overwhelming circumstantial evidence of Jamison's guilt independent of the complainant's identification.
Defendants remaining contentions, including those contained in defendant McCorkle's pro se supplemental brief, are unpreserved or unreviewable and we decline to review the unpreserved claims in the interest of justice. Were we to review these claims, we would reject them.
Id. at 274-75, 709 N.Y.S.2d at 421 (citations omitted).
On July 6, 2000, Jamison's appellate counsel sought leave to appeal to the New York Court of Appeals, asserting that the First Department erred by: (1) "finding that [Jamison] was not denied effective assistance of trial counsel where trial counsel told an entire panel of potential jurors that they were 'sub-par' and then permitted seven members of the panel to sit on the petit jury" (Ex. 20: Jamison 7/6/00 Leave to Appeal Letter at 2-3); (2) "finding that trial counsel carefully considered and appropriately failed to file a speedy trial motion where transcripts crucial to these findings were never even provided or made part of the appellate record" (Id. at 3-4); (3) not addressing whether the trial court's determination that "periods where the defendant's counsel is not present in the courtroom during calendar calls and where the State is not ready to proceed [were chargeable] to the defense" (Id. at 4-5); and (4) "holding that the claims surrounding the surprise in-court identification and testimony about out-of-court identification were unpreserved for review" (id. at 5-6). The six-page leave letter ended with the conclusion sentence that "for the reasons set forth above and in Mr. Jamison's briefs submitted along with this letter application, this Court should grant leave to appeal on each and every claim raised." (Id. at 6.)
The State's letter opposing leave to appeal stated that Jamison "seeks leave on four separate grounds." (Ex. 21: State 8/7/00 Letter Opposing Leave to Appeal, at 2.)
On September 20, 2000, the Court of Appeals denied leave to appeal.People v. Jamison, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000); see also People v. McCorkle, 95 N.Y.2d 936, 715 N.Y.S.2d 612 (2000).
Jamison's Third C.P.L. § 440 Motion
Jamison filed his third pro se C.P.L. § 440 motion on September 11, 2000, arguing that "the judgment was obtained by suppression of material and favorable evidence," and that "the prosecutor at trial knowingly presented false and misleading testimony," resulting in a denial of "effective assistance of defense counsel, a fair trial and due process of law." (Dkt. No. 23: ADA Sukkar Aff. ¶ 24; Ex. 22: Jamison 9/11/00 C.P.L. § 440 Motion.) On January 28, 2002, the Supreme Court, Bronx County (Justice Alexander Hunter) denied Jamison's motion "in its entirety":
The court finds that all of the defendant's claims are procedurally barred pursuant to Criminal Procedure Law § 440.10(2)(c). The defendant's claim[s] are that exculpatory evidence was withheld and that at trial, the prosecutor knowingly presented false and misleading testimony. These claims require an examination of the trial transcripts to determine for instance, what was not turned over to the defendant at trial thereby potentially becoming matters that should have been raised on defendant's direct appeal. The defendant failed to advance and address these matters in his appeal therefore, defendant's motion is summarily denied.
* * * *
Moreover, that branch of defendant's motion which asserts that he was denied the effective assistance of counsel and thus, a fair trial and denial of due process is also denied. The defendant raised this claim in his direct appeal and the Appellate Division, First Department found that the defendant was not deprived of meaningful representation. Therefore, the defendant's claim is denied pursuant to C.P.L. § 440.10(3)(b).People v. Jamison, No. 2832/1993 (Sup.Ct. Bx. Co. Jan. 28, 2002). The First Department denied leave to appeal the denial of Jamison's third C.P.L § 440 motion. People v. Jamison, No. 2832-93 (1st Dep't Apr. 30, 2002).
Jamison's Federal Habeas Corpus Petition
Jamison's federal habeas petition claims that: he was denied effective assistance of trial counsel by defense counsel's offensive remarks to prospective jurors during voir dire, counsel's failure to raise a speedy trial claim, and counsel's failure to object to improper identification testimony (Dkt. No. 2: Pet. ¶ 13); he was denied due process because he never received complete pretrial and trial transcripts, preventing him from succeeding on appeal (Id.); and the prosecution continually withheld and destroyed exculpatory evidence and the state courts were delaying decision on his C.P.L. § 440 motion (id.; see also Dkt. No. 4: Jamison 7/18/01 Br. at 13).
ANALYSIS I. APPLICABLE LEGAL PRINCIPLES
For additional decisions authored by this Judge discussing the AEDPA review standard in language substantially similar to that in this entire section of the Report Recommendation, see Cromwell v. Keane, 98 Civ. 0013, 2002 WL ___ at *___ (S.D.N.Y. May 8, 2002); 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.);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.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *10 (S.D.N.Y. May 25, 2000) (Peck, M.J.).
Before the Court can determine whether Jamison is entitled to federal habeas relief, the Court must address: (1) the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA"); and (2) whether the state court adjudicated Jamison's claims on the merits so that the AEDPA review standard applies.
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, 2002 WL 769444 at *5.
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., Kennaugh v. Miller, No. 01-228 1, 2002 WL 769444 at *4 (2d Cir. Apr. 12, 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., Kennaugh v. Miller, 2002 WL 769444 at *4; 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.
Accord, e.g., Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.
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)); see also, also 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, 2002 WL 769444 at *7.
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., Jenkins v. Artuz, Nos. 01-2355, 01-2328, 2002 WL 483547 at *6 (2d Cir. Apr. 1, 2002) ("InSellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."); Norde v. Keane, No. 01-2049, 2002 WL 483488 at *7 (2d Cir. Mar. 29, 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, 2002 WL 483488 at *7; Aparicio v. Artuz, 269 F.3d at 93.
B. The Strickland v. Washington Standard On Ineffective Assistance of Counsel
For additional decisions authored by this Judge discussing theStrickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see Cromwell v. Keane, 98 Civ. 0013, ______ WL ______ at *______ (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); 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.); 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.
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."Id. at 689, 104 S.Ct. at 2065 (citation omitted); accord, e.g., 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., 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 counselled 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 counselled 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 (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); accord, e.g., Ennis v. Walker, 2001 WL 409530 at *16.
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., 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. The question before this Court, therefore, is whether the state court's denial of Jamison's ineffective trial counsel claims involved an "unreasonable application" of the legal principles established by the Supreme Court in Strickland and its progeny.
II. THE FIRST DEPARTMENT'S DENIAL OF JAMISON'S INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS WAS NOT AN UNREASONABLE APPLICATION OF THE STRICKLAND v. WASHINGTON STANDARDA. Counsel's Statements During Jury Selection
Jamison alleges that "[t]rial counsel offended the entire panel of prospective and seated jurors during the voir dire phase of petitioner's trial" (Dkt. No. 2: Pet. ¶ 13) and "trial counsel's conduct had ruined any chance for this petitioner to have received a selection of fair, unbiased and impartial jurors to serve on the case. Trial counsel's overall conduct, was so offensive to the entire panel of jurors in his manner (i.e., tone of voice, demeanor, body movements, and personal feelings) that the jurors felt offended at trial counsel to the point of outrage being openly expressed by at least one of the jury members." (Dkt. No. 4: Jamison 7/18/01 Br. at 4.) Jamison alleges that counsel's behavior constituted ineffective assistance and that the jurors "predetermined to take revenge upon [Jamison] in the finding of guilt because of trial counsel's manifest hostility that had been exhibited towards the entire panel. A late apology from trial counsel, could not even suffice to cure the extreme hurt and offense experienced by one of their [the jury's] fellow jurors to the point of an outright verbal expression of disagreement." (Id. at 4, emphasis in original.)
The First Department held that "Jamison was not deprived of meaningful representation by his counsel's isolated intemperate remark during voir dire concerning certain venire persons with whom counsel was displeased. In context, this remark was not directed at the entire panel, but at particular members, all of whom were excused for cause. Jamison's claim that counsel offended the entire panel to his client's detriment is unsupported by the record." People v. McCorkle, 272 A.D.2d 273, 274, 709 N.Y.S.2d 519, 520-21 (1st Dep't), appeal denied, People v. Jamison, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000) People v. McCorkle, 95 N.Y.2d 936, 715 N.Y.S.2d 612 (2000).
To succeed on this habeas claim, Jamison would have to prove, first, that counsel's performance was deficient, and second, that but for counsel's error, he would not have been convicted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064 (1984); see also discussion and cases cited at pages 21-24 above. Jamison has not established either factor, much less both.
First, while counsel's remarks during voir dire were inappropriate, the Court is not prepared to find that defense counsel's performance was legally deficient. Defense counsel's remarks actually served to ferret out hostile jury members who felt that jury duty was a "waste of time" or who were prejudiced against defendants because of personal experiences or views of the criminal justice system. (See pages 6-8 above.) The jurors who expressed hostility towards defendants or suspicion of the system were excused for cause (see pages 6-9 above), and all jurors who ultimately served at trial promised that they could be fair. (See page 9 above.) Defense counsel also apologized to the jury for his comments during his opening statement. (See page 9 above.)
Moreover, even if counsel's performance in this respect was deficient, this Court is hard-pressed to find that, absent defense counsel's outburst, the jury would have reached a different verdict, as required by Strickland's second, prejudice prong. The police caught Jamison moments after the mugging with the victim's jewelry in his fist. (See page 3 above.) Jamison has not met his burden of proving that absent defense counsel's performance, he would not have been convicted. This Court cannot find the First Department's holding in this regard was contrary to, or an unreasonable application of, the Supreme Court'sStrickland precedent.
In other contexts, inappropriate remarks during trial have been found not to be enough to find ineffective assistance of counsel. See e.g., Loving v. O'Keefe, 960 F. Supp. 46, 51 (S.D.N.Y. 1997) ("It is true that petitioner's lawyer engaged in certain improper behavior. He called the prosecutor a 'jerk' in front of the jury. The judge admonished him more than once for making faces and repeating answers of witnesses in a mocking tone. But these actions, while unprofessional, did not deprive petitioner of meaningful and effective representation. . . . [even though] [t]he representation may have been overzealous at times.") (record citations omitted).
B. Counsel's Failure to Raise a Speedy Trial Claim
During pre-trial proceedings, Jamison expressed his frustration at the delay in being brought to trial and his intent to file a motion to dismiss based on speedy trial grounds. (10/24/94 Calendar Call Tr. at 3.) Jamison submitted a pro se motion alleging that his right to a speedy trial had been violated. (See Jamison Br. at 3; 12/15/93 Calendar Call Tr. at 2-3.) The motion was never adopted by Jamison's counsel and was denied by the trial court. (12/15/93 Calendar Call Tr. at 2-3.) Although Jamison urged his attorney to file a speedy trial motion on his behalf (see Ex. 1: Attached 4/11/94 Stapleton Letter), counsel declined to do so, explaining:
Be advised that I am in receipt of your letter dated April 6, 1994, in which you request of me that I either file a "State Writ of [Habeas] Corpus" or relieve myself as your attorney.
While your case is certainly more than ninety (90) days old, a review of the record in this case indicates that ninety (90) days of chargeable time have not yet passed. Delays caused by court congestion (i.e. no available parts), motion practice (by counsel or the defendant pro se), or the substitution of counsel for the defense are not chargeable to the People under C.P.L. Section 30.30. The majority of the delays in your case have been caused by these very factors; as such, a Writ of [Habeas] Corpus does not lie at this time and I will not file for this relief.
(Ex. 1: Attached 4/11/94 Stapleton Letter.)
Jamison's federal habeas petition alleges that counsel was ineffective for failing to move to dismiss on speedy trial grounds. (Dkt. No. 2: Pet. ¶ 13; Jamison 7/18/01 Br. at 35-39; Dkt. No. 14: Jamison 10/29/01 Supp. Br. at 8-11.) Jamison argues with regard to certain particularized court adjournment dates on the "speedy trial issue" . . . the respondent seeks 55 days for the July 27, 1994 to September 20, 1994 period. (Dkt. No. 18: 1/30/02 Jamison Letter at 2.) Jamison raised his ineffective counsel/speedy trial claim on direct appeal, and the First Department found that "the existing record establishes that Jamison's counsel, after careful consideration, made an appropriate determination that a speedy trial motion would be unavailing." People v. McCorkle, 272 A.D.2d 273, 274, 709 N.Y.S.2d 519, 520-21 (1st Dep't) appeal denied, People v. Jamison, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000) People v. McCorkle, 95 N.Y.2d 936, 715 N.Y.S.2d 612 (2000). Because the First Department addressed this issue on the merits, the AEDPA's deferential standard of review applies.
If a speedy trial motion in all likelihood would have been unsuccessful, trial counsel's failure to make the motion does not constitute ineffective assistance. See, e.g., Parron v. Quick, 869 F.2d 87, 90 (2d Cir.), cert. denied, 493 U.S. 860, 110 S.Ct. 171 (1989); Whaley v. Rodriguez, 840 F.2d 1046, 1048 (2d Cir.), cert denied, 488 U.S. 944, 109 S.Ct. 371 (1988); Hernandez v. Artuz, 99 Civ. 4522, 2002 WL 236678 at *7 (S.D.N.Y. Feb. 14, 2002); Davis v. McLaughlin, 122 F. Supp.2d 437, 443-44 (S.D.N.Y. 2000); White v. Keane, 51 F. Supp.2d 495 (S.D.N.Y. 1999); Avala v. Stinson, No. 98-CV-378, 1999 WL 299308 at *3 (W.D.N.Y. Mar. 22, 1999); Erdheim v. Greiner, 22 F. Supp.2d 291, 295 (S.D.N.Y. 1998); Boyd v. Hawk, 965 F. Supp. 443, 450 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.) (citing Romero v. Keane, 92 Civ. 2495, 1993 WL 228076 at *5 (S.D.N.Y June 23, 1993)). This Court therefore will analyze the merits of the underlying claim i.e., the alleged speedy trial violation.
Under New York law, a motion to dismiss must be granted if the State is not ready for trial within six months of the commencement of a criminal action. C.P.L. § 30.30(1)(a). A criminal action is commenced as soon as an accusatory instrument is filed in a criminal court. C.P.L. § 1.20(17). C.P.L. § 30.30(4) excluding the period when there is,inter alia: (1) "a reasonable period of delay resulting from other proceedings concerning the defendant, including but not limited to: . . . pre-trial motions; . . . and the period during which such matters are under consideration by the court," C.P.L. § 30.30(4)(a); (2) a "period of delay resulting from a continuance granted by the court at the request of, or with the consent of the defendant or his counsel," C.P.L. § 30.30(4)(b); or (3) a "period during which the defendant is without counsel through no fault of the court," C.P.L. § 30.30(4)(f). See generally Boyd v. Hawk, 965 F. Supp. at 450 n. 7.
Jamison was arrested on April 4, 1993, and since the State begins the speedy trial clock on April 9, 1993 (Dkt. No. 23: State Br. at 18, 29;see also Ex. 18: State 1st Dep't Br. at 29, 41), had there been no excludable delay, trial should have commenced within six months after April 9, 1994, or by October 9, 1994. (C.P.L. § 30.30.) Jury selection, however, did not begin until November 7, 1994. (Dkt. No. 23: State Br. at 27.)
It is possible that a felony complaint was filed on that date, which would begin the speedy trial clock. See People v. Cortes, 80 N.Y.2d 201, 208 n. 3, 590 N.Y.S.2d 9, 13 n. 3 (1992); N.Y. C.P.L. § 1.20(17). Jamison was indicted in late April or perhaps early May 1993. (Ex. 17: Jamison 1st Dep't Br. at 11; Ex. 9: ADA Chichester Aff. ¶ 10.)
In the context of speedy trial motions, trial "commences" when a jury is impaneled and sworn See e.g., C.P.L. § 1.20(11) ("A jury trial commences with the selection of the jury. . . ."); People v. Bresnic, 136 A.D.2d 169, 173, 526 N.Y.S.2d 968, 970 (2d Dep't 1988);People v. Jamal, 181 Misc.2d 936, 939-40, 696 N.Y.S.2d 752, 754-55 (Sup.Ct. Queens Co. 1999) ("This court finds pursuant to CPL 1.20 (11) that for purposes of CPL 30.30(5)(a), a trial was commenced in this matter at the time the panel of prospective jurors was sworn."); People v. Bellamy, 167 Misc.2d 265, 266-67, 639 N.Y.S.2d 649, 650 (Sup.Ct. Queens Co. 1995).
A thorough review of the record, however, establishes that there was no speedy trial violation because certain time was properly excludable. No record or transcript has been provided to the Court as to what transpired from April 9, 1993 to May 12, 1993 so the Court will assume that these thirty-three days are includable. The Court has copies of transcripts of Jamison's pre-trial proceedings beginning with May 12, 1993. Jamison's case was adjourned from May 12 to May 20 for a substitution of counsel. (5/12/93 Calendar Call Tr. at 3.) That period is therefore excludable. The State failed to produce Jamison for his scheduled court appearances between May 20 and June 10 (5/20/93 Calendar Call Tr. at 2; 6/1/93 Calendar Call Tr. at 2); these twenty-two days are therefore includable. Jamison was arraigned on June 11, 1993 (6/11/93 Calendar Call Tr. at 2) and the matter was adjourned to June 15, 1993 for discovery. Those days therefore are excludable. The thirty-five days from June 15 to July 20, 1993 are excluded because Jamison's counsel was unavailable. (6/15/93 Calendar Call Tr. at 2.) From July 20 to November 3, 1993, time is excludable since Jamison and his co-defendants engaged in motion practice. (7/20/93 Calendar Call. Tr. at 2-3; 9/14/93 Calendar Call Tr. at 2-4; 9/28/93 Calendar Call Tr. at 3-4; 10/19/93 Calendar Call Tr. at 2-4.) The case was adjourned from November 3, 1993 to November 17, 1993 for the substitution of Jamison's counsel. (11/3/93 Calendar Call Tr. 2-3.) That time is excludable. The transcript of the November 17, 1993 proceeding is missing, so the Court will include in the speedy trial calculations the fourteen days between the November 17, 1993 hearing and the subsequent hearing on December 1, 1993. On December 1, 1993, the case was adjourned to December 8 because the prosecutor was on trial in another matter (12/1/93 Calendar Call Tr. at 2-3), totaling seven includable days. On December 8, 1993, Jamison's counsel asked for an adjournment to December 15 to review Jamison's pro se motion. (12/8/93 Calendar Call Tr. at 2.) That time is excludable. Upon returning to court on December 15, 1993, Jamison's counsel asserted that he found Jamison's motion to be meritless, and the court denied the motion. (12/15/93 Calendar Call Tr. at 2-3.) The prosecution announced ready for trial on December 15 (and so time is excluded), but Jamison's case was adjourned to January 11, 1994 (since his co-defendant's case had been adjourned to that date), and was again adjourned to February 1, 1994 due to the unavailability of both co-defendant's counsel and the prosecution. (1/11/94 Calendar Call Tr. at 3.) All that time, therefore, is excludable. On February 1, 1994, after a side-bar with the trial court, Jamison's counsel announced that he was ready for trial and the prosecutor requested two days to produce witnesses; the court found those two days were chargeable against the State and adjourned the case to February 15. (2/1/94 Calendar Call Tr. at 2.) Even if all four days were includable (instead of two) there would be no speedy trial problem. On February 15, 1994 the case was again adjourned to March 1, 1994 due to the unavailability of co-defendant's counsel, and the trial court stated that time was excludable. (2/15/94 Calendar Call Tr. at 2-5.) The State concedes that the twenty-eight days of adjournments requested by the prosecutor from March 1, 1994 to March 29, 1994 are chargeable against the State. (State Br. at 24; 3/1/94 Calendar Call Tr. at 6; 3/15/94 Calendar Call Tr. at 2-3.) On March 29, 1994 the case was adjourned to April 5, 1994 due to the unavailability of Jamison's counsel. (3/29/94 Calendar Call Tr. at 2-3.) The case subsequently was adjourned on three more occasions between April 5, 1994 and June 7, 1994 due to the unavailability of co-defendant's counsel. (4/5/94 Calendar Call Tr. at 2-4; 4/19/94 Calendar Call Tr. at 3; 5/3/94 Calendar Call Tr. at 2.) On June 7, 1994, co-defendant's counsel requested an additional day for trial preparation and the prosecutor requested a week; therefore seven days are includable during this time. (6/7/94 Calendar Call Tr. at 2.) The case was adjourned from June 15, 1994 to July 27, 1994 on three occasions due to the unavailability of defense counsel. (6/15/94 Calendar Call Tr. at 3-5; 6/29/94 Calendar Call Tr. at 2; 7/14/94 Calendar Call Tr. at 3-4.) That time is excludable. On July 27, 1994, both the prosecutor and Jamison's counsel stated their readiness for trial, but the case was adjourned to September 20, 1994 due to the unavailability of co-defendant's counsel. (7/27/94 Calendar Call Tr. at 4) On September 20, 1994, the prosecutor requested a seven day adjournment, so seven days are includable time. (9/20/94 Calendar Call Tr. at 2.) On September 27, 1994 and again on October 6, 1994, Jamison's attorney was on trial in other cases and requested adjournments; the case was adjourned to October 24, and that time is excludable. (9/27/94 Calendar Call Tr. at 4; 10/6/94 Calendar Call Tr. at 6.) On October 24, 1994 the matter was adjourned for one day due to court congestion. (10/24/94 Calendar Call Tr. at 2.) From October 25, 1994 to November 7, 1994, the day of jury selection, pre-trial hearings and motions were taking place. The total includable time chargeable to the State is 120 days, well under the six months (approximately 180 days) the State had to bring Jamison to trial.
At the July 27 Calendar Call, the court noted that "getting all these lawyers together to try one multiple [three defendant] case carries its own difficulties to begin with and what we have done is selected a date in September which reminds me if each of the lawyers that I intend to speak with maintain clearness of their calendars, this case should be tried on September 20th." (7/27/94 Calendar Call Tr. at 4.)
Jamison's speedy trial motion would not have been successful and counsel therefore was not ineffective for failing to make such a motion. This claim therefore fails Strickland's second, prejudice prong, and the First Department was correct in concluding that defense counsel "made an appropriate determination that a speedy trial motion would be unavailing."People v. McCorkle, 272 A.D.2d 273, 274, 709 N.Y.S.2d 519, 521 (1st Dep't), appeal denied, People v. Jamison, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000) People v. McCorkle, 95 N.Y.2d 936, 715 N.Y.S.2d 612 (2000).
Nor does this Court find an error of constitutional dimensions. In the instant case, the period between Jamison's arrest on April 4, 1993 and the start of trial in November 7, 1994, was approximately nineteen months. The Supreme Court and the Second Circuit have found that no constitutional speedy trial violation existed in cases in which the period between arrest and trial was even longer. See e.g., Barker v. Wingo, 407 U.S. 514, 533-34, 92 S.Ct. 2182, 2193-94 (1972) (over 5 years); Rayborn v. Scully, 858 F.2d 84, 89 (2d Cir. 1988) (over 7 years), 488 U.S. 1032, 109 S.Ct. 842 (1989); United States v. Lane, 561 F.2d 1075, 1078 (2d Cir. 1977) ("The delay here was quite lengthy approximately 58 months or just under five years but nevertheless was shorter than that in other cases in which no Sixth Amendment violation has been found."); United States v. Infanti, 474 F.2d 522, 527 (2d Cir. 1973) ("the length of time from arrest to indictment was 21 months and from arrest to trial 28 months, neither extraordinary."); Holden v. Miller, 00 Civ. 926, 2000 WL 1121551 at *10 (S.D.N.Y. Aug. 8, 2000) (Peck, M.J.) (two-and-a-half years); United States v. Castrillon-Lopez, 85 Cr. 880, 1992 WL 6184 at *2 (S.D.N.Y. Jan. 3, 1992) (over 5 years).
Accordingly, Jamison's ineffective assistance of counsel claim based on a failure to make a speedy trial motion should be denied.
III. JAMISON'S INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM BASED ON A FAILURE TO OBJECT TO ALLEGED IMPROPER IN-COURT/OUT-OF-COURT IDENTIFICATION IS UNEXHAUSTED AND PROCEDURALLY BARRED FROM HABEAS REVIEW BECAUSE IT WAS NOT RAISED BEFORE THE NEW YORK COURT OF APPEALSJamison alleges in his habeas petition that "trial counsel . . . failed to timely object to the in-court identification of petitioner by the complainant/victim during the trial of the case, even though there was no 'independent source' for the in-court identification testimony" regarding his out| of-court identification. (Dkt. No. 2: Pet. ¶ 13; see also Dkt. No. 4: Jamison 7/10/01 Br. at 23-35.) Jamison arguably raised this claim before the First Department by a single sentence in his forty-two page appellate brief, that "[i]n the event this Court determines that a waiver occurred, the claim must be renewed under plain error standard, in the interest of justice, or because the waiver [caused by failing to object] was caused by ineffective assistance of counsel . . . [I]t was an unacceptable deviation from professional standards for trial counsel to fail to preserve the issues." (Dkt. No. 17: Jamison 1st Dep't Br. at 34.) However, Jamison failed to raise the ineffective assistance of counsel/identification testimony claim in his application for leave to appeal to the New York Court of Appeals. (See Ex. 20: Jamison 7/6/00 Leave to Appeal Letter at 2-6.)
A. The Exhaustion Doctrine: Background
For additional cases authored by this Judge discussing the background of the exhaustion doctrine in language substantially similar to that in this entire section of this Report and Recommendation see Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *5-6 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Bailey v. People, 01 Civ. 1179, 2001 WL 640803 at *3-4 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Bryant v. Bennett, 00 Civ. 5692, 2001 WL 286776 at *7 (S.D.N.Y. Mar. 2, 2001) (Peck, M.J.); Brock v. Artuz, 99 Civ. 1903, 2000 WL 1611010 at *11 (S.D.N.Y. Oct. 27, 2000) (Peck, M.J.); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *5 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *2 (S.D.N.Y. July 5, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *23 n. 14 (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.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *7 (S.D.N.Y. May 16, 2000) (Peck, M.J.);Thomas v. Greiner, 111 F. Supp.2d 271, 274-75 n. 2 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.) ( cases cited therein); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *19 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.);Lugo v. Kuhlmann, 68 F. Supp.2d 347, 360 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Orraca v. Walker, 53 F. Supp.2d 605, 609-10 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.); Otero v. Stinson, 51 F. Supp.2d 415, 419 (S.D.N.Y. 1999) (Baer, D.J. Peck, M.J.); Jordan v. LeFevre, 22 F. Supp.2d 259, 266 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground. rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000).
Section 2254 codifies the exhaustion requirement, providing that "[a]n 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 unless it appears that — (A) the applicant has exhausted the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(1)(A);see, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 842, 119 S.Ct. 1728, 1731 (1999); Rose v. Lundy, 455 U.S. 509, 515-16, 102 S.Ct. 1198, 1201 (1982) ("The exhaustion doctrine existed long before its codification by Congress in 1948" in 28 U.S.C. § 2254.); Picard v. Connor, 404 U.S. 270, 275, 92 S.Ct. 509, 512 (1971); Bossett v. Walker, 41 F.3d 825, 828 (2d Cir. 1994), cert. denied, 514 U.S. 1054, 115 S.Ct. 1436 (1995); Pesina v. Johnson, 913 F.2d 53, 54 (2d Cir. 1990); Dave v. Attorney General, 696 F.2d 186, 190-94 (2d Cir. 1982) (en banc), cert.denied, 464 U.S. 1048, 104 S.Ct. 723 (1984). As the Supreme Court has made clear, "[t]he exhaustion doctrine is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings." Rose v. Lundy, 455 U.S. at 518, 102 S.Ct. at 1203; accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 845, 119 S.Ct. at 1732.
The Second Circuit has long held, and the Supreme Court confirmed, that "a state prisoner must present his claims to a state supreme [i.e., highest] court in a petition for discretionary review in order to satisfy the exhaustion requirement." O'Sullivan v. Boerckel, 526 U.S. at 839-40, 119 S.Ct. at 1730; accord, e.g., Jordan v. LeFevre, 206 F.3d at 198;Morgan v. Bennett, 204 F.3d 360, 369 (2d Cir.), cert. denied, 531 U.S. 819, 121 S.Ct. 59 (2000); Bossett v. Walker, 41 F.3d at 828 ("To fulfill the exhaustion requirement, a petitioner must have presented the substance of his federal claims 'to the highest court of the pertinent state.'"); Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991) ("a petitioner must present his federal constitutional claims to the highest court of the state before a federal court may consider the merits of the petition"); Pesina v. Johnson, 913 F.2d at 54 ("We have held that the exhaustion requirement mandates that federal claims be presented to the highest court of the pertinent state before a federal court may consider the petition, citingDave) Dave v. Attorney General, 696 F.2d at 191 n. 3 (Exhaustion of available state remedies requires presentation of the claim to the highest state court from which a decision can be had.").
The Second Circuit determines whether a claim has been exhausted by applying a two-step analysis:
"First, the petitioner must have fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts. . . . Second, having presented his federal constitutional claim to an appropriate state court, and having been denied relief, the petitioner must have utilized all available mechanisms to secure [state] appellate review of the denial of that claim."Diaz v. Coombe, 97 Civ. 1621, 1997 WL 529608 at *3 (S.D.N.Y. June 12, 1997) (Mukasey, D.J. Peck, M.J.) (quoting Klein v. Harris, 667 F.2d 274, 282 (2d Cir. 1981)); accord, e.g., O'Sullivan v. Boerckel, 526 U.S. at 844-47, 119 S.Ct. at 1732-34.
B. Jamison's Ineffective Assistance of Counsel Identification Claim is Unexhausted and Procedurally Barred
1. Jamison's Claim is Unexhausted Because Jamison Failed to Present It to the New York Court of Appeals
Although Jamison briefly mentions an ineffective assistance of trial counsel claim based on a failure to timely object to improper in-court identification in his First Department brief (see page 33 above) Jamison failed to raise this claim when seeking leave to appeal to the New York Court of Appeals (see Ex. 20: Jamison 7/6/00 Leave to Appeal Letter at 2-6). Jamison's counsel's July 6, 2000 leave letter raised a claim of ineffective assistance of counsel based only on defense attorney's comments that the jury venire was "sub-par" (id. at 2-3), and raised a separate claim challenging the First Department's holding that "the surprise in-court identification and testimony about out-of-court identification were unpreserved for review" (id. at 5-6). After six single spaced pages devoid of any mention of an ineffective assistance of counsel claim based on a failure to object to in-court identification, Jamison's July 6, 2000 leave letter closed with: "In sum, for the reasons set forth above and in Mr. Jamison's briefs submitted along with this letter application, this Court should grant leave to appeal on each and every claim raised." (Id. at 6.)
Because this Court finds that Jamison's claim is unexhausted since he did not raise it in his leave application to the Court of Appeals, the Court need not address whether Jamison's First Department brief "fairly presented" this claim.
To determine whether Jamison's counsel's letter to the Court of Appeals enclosing his First Department briefs is sufficient to have exhausted his ineffective assistance of counsel claim based on trial counsel's failure to object to improper identification, the Court's analysis here must start with the leading Second Circuit decision in Grey v. Hoke, 933 F.2d 117 (2d Cir.1991), and continue through two seminal Second Circuit cases explicating Grey, Jordan v. LeFevre, 206 F.3d 196, 198-99 (2d Cir. 2000), and Morgan v. Bennett, 204 F.3d 360 (2d Cir.), cert.denied, 531 U.S. 819, 121 S.Ct. 59 (2000).
In Grey v. Hoke, the petitioner argued one claim in his leave to appeal letter to the New York Court of Appeals, and he also attached his Appellate Division briefs, which had raised that issue along with two others. Grey v. Hoke, 933 F.2d at 120. The Second Circuit held that the claims only referred to in his attached briefs were not exhausted:
Petitioner argues that by attaching his Appellate Division brief to his letter application to the Court of Appeals, he presented that court with an opportunity to rule on his sentencing and prosecutorial misconduct claims. He concedes, however, that his letter application requested that the Court of Appeals review only the search and seizure claim. The letter made no mention of the sentencing and prosecutorial misconduct claims. Under these circumstances, we disagree with petitioner's assertion that the Court of Appeals was presented with his sentencing and prosecutorial misconduct claims.
The fair import of petitioner's submission to the Court of Appeals. consisting of his brief to the Appellate Division that raised three claims and a letter to the Court of Appeals arguing only one of them, was that the other two had been abandoned. The only possible indication that the other two claims were being pressed was the inclusion of a lengthy brief originally submitted to another court. This did not fairly apprise the court of the two claims. We decline to presume that the New York Court of Appeals has "a duty to look for a needle in a paper haystack." For a federal court to hold that a state court had the opportunity to rule on a constitutional claim as to which no ruling was requested, and then to rule on the merits of the claim itself, would undermine the very considerations of comity that the rules of exhaustion were designed to protect.Grey v. Hoke, 933 F.2d at 120 emphasis added citations omitted).
Accord, e.g., Bailey v. People of New York, 01 Civ. 1179, 2001 WL 640803 at *4-5 (S.D.N.Y. June 8, 2001) (Peck, M.J.); Kirby v. Senkowski, 97 Civ. 3329, 2001 WL 394862 at *6-7 (S.D.N.Y. Apr. 17, 2001) (sufficiency of evidence claim unexhausted where petitioner submitted Appellate Division briefs to New York Court of Appeals but failed to mention that claim anywhere in follow up leave letter which focused on other unrelated claims); Black v. McGinnis, 99 Civ. 0755, 2001 WL 209916 at *3-4 (S.D.N.Y. Mar. 1, 2001) (Mukasey, D.J.) (where petitioner's letter requested leave to appeal and was accompanied by appellate division briefs but did not identify any issue for appeal, claims were unexhausted); Snead v. Artuz, 99 Civ. 2406, 2001 WL 199409 at *3-4 (S.D.N.Y. Feb. 28, 2001) (where petitioner raised only one issue in leave to appeal letter, other issues unexhausted even though discussed in Appellate Division brief accompanying letter); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *24-25 (S.D.N.Y. June 6, 2000) (Peck, M.J.) (claims not exhausted where the application for leave to appeal to the New York Court of Appeals merely refers to the Appellate Division briefs without further elaboration of the claims); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *10 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (reference to Point I of 1st Dep't brief not sufficient to exhaust a different claim); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *3-6 (S.D.N.Y. July 5, 2000) (Peck, M.J.) (lengthy discussion of one issue plus submission of 1st Dep't briefs not sufficient to exhaust the issues raised only in the brief); Howard v. Lacy, 58 F. Supp.2d 157, 162-63 n. 4 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.) (claims procedurally barred where raised before 1st Dep't but not in application for leave to appeal); Cardenas v. Superintendent, Malone Correctional Facility, No. CV-94-5093, 1996 WL 497138 at *3-4 (E.D.N.Y. Aug. 26, 1996) (excessive sentence claim procedurally barred where raised before 2d Dep't but not in application for leave to appeal); DeLeon v. Hanslmaier, No. CV-94-5512, 1996 WL 31232 at *3 (E.D.N.Y. Jan. 19, 1996) ("The fact that petitioner attached his brief submitted to the Appellate Division [with his application for leave to appeal to the Court of Appeals] is not enough to satisfy the exhaustion requirement."), aff'd 104 F.3d 355 (2d Cir. 1996); Figueroa v. Kelly, 95 Civ. 0216, 1995 WL 702327 at *1 (S.D.N.Y. Nov. 29, 1995) ("If a petitioner limits the issues to be reviewed in a letter application to the New York Court of Appeals, the other claims presented in his or her Appellate Division brief are not deemed exhausted under the Lundy requirement . . . [but] should be deemed procedurally forfeited for purposes of federal habeas review where the petitioner is now procedurally barred from presenting those claims to the state court."); McGann v. Kelly, 891 F. Supp. 128, 134 (S.D.N.Y. 1995) ("By failing to raise his ineffective assistance of counsel claim in his leave application, petitioner did not fairly apprise the [N.Y.] Court of Appeals of the factual and legal premises underlying his claim."); Bass v. Scully, No. CV-92-0349, 1995 WL 347040 at *3 (E.D.N.Y. May 22, 1995);Lynes v. Mitchell, 894 F. Supp. 119, 123 (S.D.N.Y. 1995), aff'd, 104 F.3d 355 (2d Cir. 1996); Morales v. Keane, No. CV-94-2379, 1995 WL 235222 at *13 n. 9 (E.D.N.Y. April 13, 1995); Smith v. Keane, No. CV-94-0514, 1995 WL 87330 at *2 (E.D.N.Y. Feb. 10, 1995); Esquilin v. Walker, No. CV-91-4608, 1992 WL 151903 at *2 (E.D.N.Y. June 16, 1992),aff'd, 990 F.2d 624 (2d Cir. 1993); Cornielle v. Riley, No. CV-92-1018, 1992 WL 142009 at *2 (E.D.N.Y. June 16, 1992).
In 2000, the Second Circuit revisited Grey in two cases. In Jordan v. LeFevre, 22 F. Supp.2d 259, 267 (S.D.N.Y. 1998) (Mukasey, D.J. Peck, M.J.), aff'd on this ground, rev'd on other grounds, 206 F.3d 196, 198-99 (2d Cir. 2000), the petitioner clearly raised his Batson claim in his letter seeking leave to appeal to the New York Court of Appeals, but [a]fter discussing the Batson issue at length, Jordan's counsel asked for leave to appeal "for all of these reasons and the reasons set forth in his Appellate Division briefs," and noted that "[i]n support of his application, Mr. Jordan relies on this letter and on the briefs he filed in the Appellate Division." Jordan v. LeFevre, 22 F. Supp.2d at 267. This Court held the non-Batson claims to be unexhausted, and the Second Circuit affirmed that view, explaining that "arguing one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim raised does not fairly present such claims for purposes of the exhaustion requirement underlying federal habeas jurisdiction. . . . Counsel may not transfer to the state courts the duty to comb through an applicant's appellate brief to seek and find arguments not expressly pointed out in the application for leave." Jordan v. LeFevre, 206 F.3d at 199 (emphasis added). The Second Circuit affirmed the exhaustion issue "substantially for the reasons set out in [this Court's] thorough opinion and order. . . . Jordan v. LeFevre, 22 F. Supp.2d 259, 266-69 (S.D.N.Y. 1998)." Jordan v. LeFevre, 206 F.3d at 199.
See also, e.g., Lopez v. Warden, Sullivan Corr. Facility, No. 98-2877, 210 F.3d 354 (table), 2000 WL 374928 at *1 (2d Cir. Apr. 7, 2000) (submission of Appellate Division briefs along with leave to appeal letter which referred to "numerous substantive and procedural errors" but did not specifically mention voir dire claim, instead focusing on an unrelated claim, insufficient to exhaust voir dire claim), cert. denied, 531 U.S. 905, 121 S.Ct. 248 (2000); Bailey v. People, 2001 WL 640803 at *5 (initial letter submitting briefs requested opportunity to submit letter addressing appeal issues in depth, and second letter discussed bolstering issue in depth and not the prosecutorial misconduct claims, latter claims are unexhausted and barred); Mendez v. Artuz, 2000 WL 722613 at *24 (leave letter that states it is "writing to supplement the Appellate Division briefs" and then discusses several specific claims not sufficient to exhaust other claims in the Appellate Division briefs);Howard v. Lacy, 58 F. Supp.2d at 164; Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *8 n. 7 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); Ojeda v. Artuz, 96 Civ. 5900, 1997 WL 283398 at *3 (S.D.N.Y. May 29, 1997); Morrison v. McClellan, 903 F. Supp. 428, 430 (E.D.N.Y. 1995); Marrero v. Keane, 93 Civ. 3573, 1995 WL 66660 at *1 (S.D.N.Y. Feb. 16, 1995) (reference to "Points I and II" of Appellate Division brief not sufficient under Grey "[p]resentation requires more than a 'general reference' to the issues presented in an attached brief); Brooks v. Kelly, No. 88-CV-0631, 1993 WL 350188 at *2 (W.D.N.Y. Sept. 10, 1993); Thebner v. Miller, 788 F. Supp. 714, 717 (E.D.N.Y. 1992) (Petitioner's inclusion in his application to the Court of Appeals of a single sentence which refers, in a general way, to the various claims raised in his sixty-seven page brief to the Appellate Division, is insufficient to fairly apprise the Court of Appeals of the factual and legal issues in those claims.") (citing Grey).
Here, as in Jordan, Jamison merely made a passing reference to his First Department briefs in his leave application, and the mention of the ineffective assistance claim itself was a single paragraph in a lengthy brief. Such an indirect reference is insufficient under Grey and Jordan to put the New York Court of Appeals on notice that it should review the ineffective assistance/identification claim as well, and would require state courts to look for a "needle in a hay stack" while a petitioner argues "one claim in his letter while attaching an appellate brief without explicitly alerting the state court to each claim." Jordan v. LeFevre, 206 F.3d at 198-99. Therefore, Jamison did not fairly present, for exhaustion purposes, his effective assistance of counsel claim based on failure to object at trial to in-court identification.
Morgan v. Bennett, 204 F.3d 360 (2d Cir.), cert. denied, 121 S.Ct. 59 (2000), does not require a different conclusion. In Morgan, the petitioner's counsel did not argue any of the petitioner's claims in detail in his leave to appeal letter to the New York Court of Appeals.Id. at 369. Instead, petitioner's counsel's letter commenced with a brief description of the judgment of conviction and the Appellate Division's affirmance of same. Id. The letter then concluded with the following language:
I am enclosing copies of the briefs filed in the Appellate Division and that Court's order and opinion. Please advise me of the judge designated to decide this application so that I may send that judge a follow-up letter in support of the application. We request this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief.Morgan v. Bennett, 204 F.3d at 369-70 (emphasis added). After he was informed of the assigned judge, Morgan's counsel sent the assigned judge a follow-up letter — discussing one issue in detail and drawing the Court's attention to another issue raised in the petitioner's pro se brief. Id. at 370. The Second Circuit held that counsel's statement in her initial letter to the Court of Appeals which expressly "request[ed] this Court to consider and review all issues outlined in defendant-appellant's brief and pro se supplemental brief submitted to the Appellate Division" was "sufficiently specific to alert the Court of Appeals that Morgan sought review of all of the issues raised in his pro se supplemental Appellate Division brief." Id. at 370-71. In distinguishing Morgan in Jordan, the Second Circuit made clear that it was the explicit request to review all issues in the Appellate Division briefs that made the difference: "Had appellant more clearly stated that he was pressing all of the claims raised in the attached brief or had his letter made no argument in detail but rather only request[ed that the Court of Appeals] consider and review all issues outlined in defendant-appellant's brief, the result here would be different and the remaining claims would have been fairly presented to the Court of Appeals." Jordan v. LeFevre, 206 F.3d at 199 (citing Morgan v. Bennett, 204 F.3d at 370-71).
See also, e.g., Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *4 n. 4 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.) (letter pointed out specific reasons why leave to appeal was warranted on five often issues raised in First Department but as to remaining five issues stated only that "The Appellate Division, First Department rejected the contentions set forth by Defendant-Appellant . . . in Point III . . . and Point VI through Point X without specifying the basis in its opinion. It is respectfully suggested that each of these Points contains issues that warrant consideration by the Court of Appeals"; habeas court held that even the five issues dealt with in "throw-away manner" were exhausted);Lyon v. Senkowski, 109 F. Supp.2d 125, 134 n. 4 (W.D.N.Y. 2000) (issue contained in petitioner's pro se brief to appellate division exhausted where "correspondence between [petitioner] and the Court of Appeals suggests that the court was apprized of [petitioner]'s intention to raise all the issues in his pro se brief); Cowan v. Artuz, 96 F. Supp.2d 298, 302 (S.D.N.Y. 2000) (issues exhausted where leave to appeal letter asked Court of Appeals to "consider issues one through five inclusive of the Appellant's brief"); Shepard v. Artuz, 99 Civ. 1912, 2000 WL 423519 at *4 (S.D.N.Y. Apr. 19, 2000) (exhaustion under same fact pattern asMorgan).
Jamison's case is clearly distinguishable from Morgan. Unlike counsel in Morgan, Jamison's counsel did not request that the Court of Appeals "consider and review all issues outlined in defendant-appellant's brief."Morgan v. Bennett, 204 F.3d at 369-70. Rather, Jamison's case is governed by Grey and Jordan: Jamison's mere enclosure of his Appellate Division briefs in his leave to appeal application, while clearly singling out four claims and discussing them at length, is not sufficient. See, e.g., Ramirez v. Attorney General of New York, 280 F.3d 87, 97 (2d Cir. 2001) ("We perceive the line drawn between Morgan and Jordan to be as follows. References to attached briefs without more will preserve issues only if the Court of Appeals is clearly informed that the reference is asserting issues in those briefs as bases for granting leave to appeal. In Morgan, the language unmistakably requested review of each point in the Appellate Division brief. In Jordan, the words for all of these reasons and the reasons set forth in [the] Appellate Division briefs' might as easily have been a reference to additional reasons for reviewing the Batson claim as an incorporation of other, different claims asserted in the lower court."); Tirado v. Walsh, 168 F. Supp.2d 162, 168 (S.D.N.Y. 2001). Jamison's claim is therefore unexhausted.
2. Jamison's Unexhausted Ineffective Assistance of Counsel Claim Based on a Failure to Object to In-court Identification is Procedurally Barred
Jamison would now be procedurally barred from raising these claims in the New York Court of Appeals. As the Second Circuit explained in Grey v. Hoke:
Here, New York procedural rules plainly bar petitioner from attempting to raise [the claims he raised before the Appellate Division but not in his application for leave to appeal] before the New York Court of Appeals. Petitioner cannot again seek leave to appeal these claims in the Court of Appeals because he has already made the one request for leave to appeal to which he is entitled. See N.Y. Court Rules § 500.10(a). Collateral review of these claims is also barred because the issues were previously determined on the merits on direct appeal. See N.Y. Crim. Proc. Law § 440.10(2)(a); see also N.Y. Crim. Proc. Law § 440.10(2)(c) (barring review if a claim could have been raised on direct review).
We agree with the state, however, that petitioner's forfeiture in state court of [the claims not adequately raised before the N.Y. Court of Appeals] bars him from litigating the merits of those claims in federal habeas proceedings, absent a showing of cause for the procedural default and prejudice resulting therefrom. Murray v. Carrier, 477 U.S. 478, 492, 106 S.Ct. 2639, 2647 (1986); Wainwright v. Sykes, 433 U.S. 72, 87-91, 97 S.Ct. 2497, 2506-09 (1977). Petitioner makes no showing of cause or of prejudice. The [claims not raised before the Court of Appeals] must therefore be dismissed without reaching the merits.Grey v. Hoke, 933 F.2d 117, 120-21 (2d Cir. 1991). A federal court may not reach the merits of a procedurally defaulted claim "unless the habeas petitioner can show 'cause' for the default and prejudice attributable thereto," or demonstrate that failure to consider the federal claim will result in a "fundamental miscarriage of justice,"i.e., a showing of actual innocence. Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations omitted); accord, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997);Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
Accord, e.g., Bailey v. People of New York, 01 Civ. 1179, 2001 WL 640803 at *7 (S.D.N.Y. 2001) (Peck, M.J.); Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *9 (S.D.N.Y. July 19, 2000) (Peck, M.J.); Perez v. Greiner, 99 Civ. 11806, 2000 WL 915114 at *3 (S.D.N.Y. July 5, 2000) (Peck, M.J.); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *26 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Foreman v. Garvin, 99 Civ. 9078, 2000 WL 631397 at *9 nn. 10-11 (S.D.N.Y. May 16, 2000) (Peck, M.J.) ( cases cited therein).
See also, e.g., Bailey v. People of New York, 2001 WL 640803 at *7; Ventura v. Artuz, 2000 WL 995497 at *9; Perez v. Greiner, 2000 WL 915114 at *3; Mendez v. Artuz, 2000 WL 722613 at *26-27 n. 19; Foreman v. Garvin, 2000 WL 631397 at *10 n. 12; Thomas v. Greiner, 111 F. Supp.2d 271, 278 (S.D.N.Y. 2000) (Preska, D.J. Peck, M.J.) ( cases cited therein); Bond v. Walker, 68 F. Supp.2d 287, 297 (S.D.N.Y. 1999) (McKenna, D.J. Peck, M.J.), adhered to on reconsideration, 97 Civ. 3026, 2000 WL 460592 (S.D.N.Y. Apr. 19, 2000), aff'd, No. 00-2274, 242 F.3d 364 (table), 2000 WL 1804557 (2d Cir. Dec. 7, 2000); Avincola v. Stinson, 60 F. Supp.2d 133, 149 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 (S.D.N.Y. April 20, 1998) (Baer, D.J. Peck, M.J.); Farrington v. Senkowski, 19 F. Supp.2d 176, 180 (S.D.N.Y. 1998), aff'd, 214 F.3d 237 (2d Cir. 2000); Gibriano v. Attorney General, 965 F. Supp. at 492 n. 5;Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.).
Here, Jamison has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, habeas review of his ineffective assistance of counsel claim based on failure to object at trial for improper in-court identification is procedurally barred.
IV. JAMISON'S CLAIM THAT THE PROSECUTION WITHHELD EXCULPATORY EVIDENCE IS PROCEDURALLY BARRED
Jamison alleges in his petition that the "prosecution was continually withholding and destroying the material needed to support petitioner's contention of the suppression of material and relevant discovery material, thereby preventing establi[sh]ing the violation of due process of law and further evidence of denial of right to a fair trial" and effective assistance of counsel. (Dkt. No. 2: Pet. ¶ 12(d).) Jamison raised these claims in his third C.P.L. § 440 motion before the trial court. (Ex. 22: Jamison 9/11/00 C.P.L. § 440 Motion.)
In denying Jamison's third C.P.L. § 440 motion, the state court found that "all of the defendant's claims are procedurally barred pursuant to Criminal Procedure Law § 440.10(2)(c). . . . The defendant failed to advance and address these matters in his [direct] appeal therefore, defendant's motion is summarily denied." People v. Jamison, No. 2832/1993 at 2 (Sup.Ct. Bx. Co. Jan. 28, 2002) (order denying § 440 motion), appeal denied, People v. Jamison, No. 2832-93 (1st Dep't Apr. 30, 2002). (See page 16 above.)
Because the trial court's decision rejecting the claim was based on an adequate and independent state law ground, this claim is barred from federal habeas review.
The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 1043 (1989) (citations internal quotations omitted); accord, e.g., Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 (1991); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S.Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).
See also, e.g., Gonzalez v. Miller, No. 99-2514, 2001 WL 38248 at *2 (2d Cir. Jan. 12, 2001), cert. denied, 122 S.Ct. 267 (2001); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *8 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *7 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.);Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *9 (S.D.N.Y. May 21, 2001) (Peck, M.J.); Jones v. Duncan, 162 F. Supp.2d 204, 209 (S.D.N.Y. 2001) (Peck, M.J.); Mercado v. Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL987926 (S.D.N.Y. Aug. 29, 2001); Gumbs v. Kelly, 97 Civ. 8755, 2000 WL 1172350 at *8 (S.D.N.Y. Aug. 18, 2000) (Peck, M.J.); Aramas v. Donnelly, 99 Civ. 11306, 2000 WL 559548 at *4 (Apr. 13, 2000) (Peck, M.J.); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.); Estrada v. Senkowski, 98 Civ. 7796, 1999, WL 1051107 at *12 (S.D.N.Y. Nov. 19, 1999) (Pauley, D.J. Peck, M.J.); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.);Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.); Chisolm v. Headley, 58 F. Supp.2d 281, 283-84, 285 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.),aff'd, 205 F.3d 1324 (2d Cir. 2000); Veras v. Strack, 58 F. Supp.2d 201, 210-11 (S.D.N.Y. 1999) (Baer D.J. Peck, M.J.), certificate of appealability denied, 2000 WL 8249 (S.D.N.Y. Jan. 4, 2000); Torres v. Irvin, 33 F. Supp.2d 257, 273-74 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.); Johnson v. Scully, 967 F. Supp. 113, 116 (S.D.N.Y. 1997) (Rakoff, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v. Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.); Singh v. Kuhlmann, 94 Civ. 2213, 1995 WL 870113 at *12 (S.D.N.Y. Aug. 22, 1995) (Peck, M.J.), report rec. adopted, 1996 WL 337283 (S.D.N.Y. June 19, 1996) (Cote, D.J.).
"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state . . . that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9;accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999); Glenn v. Bartlett, 98 F.3d at 724-25. Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision, the adequate and independent doctrine curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S.Ct. at 1044 n. 10.
Accord, e.g., Martinez v. Greiner, 2001 WL 910772 at *9; Ferguson v. Walker, 2001 WL 869615 at *7; Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at *9; Jones v. Duncan, 162 F. Supp.2d at 210; Riles v. Breslin, 00 Civ. 3283, 2001 WL 175250 at *4 (S.D.N.Y. Feb. 23, 2001) (Peck, M.J.); Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *5 (S.D.N.Y. May 25, 2000) (Peck, M.J.); Estrada v. Senkowski, 1999 WL 1051107 at *9; Cruz v. Greiner, 1999 WL 1043961 at *13; Avincola v. Stinson, 60 F. Supp.2d at 153 n. 7.
See also, e.g., Martinez v. Greiner, 2001 WL 910772 at *9; Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at *9; Jones v. Duncan, 162 F. Supp.2d at 210; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 286-87; Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred.");Torres v. Irvin, 33 F. Supp.2d at 274; Campbell v. Brunnelle, 925 F. Supp. 150, 157 (S.D.N.Y. 1996) (Leisure D.J. Peck, M.J.);Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1996) (Baer, D.J. Peck, M.J.); Vera v. Hanslmaier, 928 F. Supp. at 285.
Accord, e.g., Martinez v. Greiner, 2001 WL 910772 at *9; Simpson v. Portuondo, 2001 WL 830946 at *10; Simmons v. Mazzuca, 2001 WL 537086 at *9; Jones v. Duncan, 162 F. Supp.2d at 210; Cruz v. Greiner, 1999 WL 1043961 at *13; Chisolm v. Headley, 58 F. Supp.2d at 287; Torres v. Irwin, 33 F. Supp.2d at 274; Williams v. Bennet, 1998 WL 236222 at *6;Vera v. Hanslmaier, 928 F. Supp. at 275.
With respect to Jamison's challenge in his third C.P.L. § 440 motion to the prosecution's alleged withholding of evidence, the trial court explicitly found that "all of [Jamison]'s claims are procedurally barred." New York law bars consideration via collateral attack of an issue that could have been raised on direct appeal. C.P.L. § 440.10(2)(c); See, e.g., People v. Cooks, 67 N.Y.2d 100, 103-04, 500 N.Y.S.2d 503, 505 (1986); People v. Byrdsong, 234 A.D.2d 468, 469, 651 N.Y.S.2d 903, 903 (2d Dep't 1996) ("Pursuant to CPL 440.10(2)(c) a court must deny a post judgment motion to vacate a conviction when sufficient facts appear in the record so that an issue may be adequately reviewed on a direct appeal and the defendant unjustifiably failed to raise the claim on appeal."), appeal denied, 89 N.Y.2d 1033, 659 N.Y.S.2d 863 (1997);People v. Skinner, 154 A.D.2d 216, 221, 552 N.Y.S.2d 932, 935 (1st Dep't) ("defendant's failure to present his constitutional attack upon his conviction after trial in the course of his direct appeal forecloses any consideration of it [in a § 440.10 proceeding]"), appeal denied, 76 N.Y.2d 796, 559 N.Y.S.2d 1001 (1990). The Second Circuit has held C.P.L. § 440.10(2)(c) to be an adequate and independent state ground. See, e.g., Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997); Levine v. Commissioner of Correctional Servs., 44 F.3d 121, 126 (2d Cir. 1995), cert. denied, 520 U.S. 1106, 117 S.Ct. 1112 (1997).
See also, e.g., Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *8 n. 20 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d 133, 145 (S.D.N.Y. 1999) (Scheindlin, D.J. Peck, M.J.);Ramos v. Costello, 96 Civ. 3659, 1997 WL 231129 at *2 (S.D.N.Y. May 7, 1997) ("The procedural ground on which the state court denied his § 440.10 motion, [precluding claims that could have been raised on direct appeal but were not,] is an independent and adequate state ground that prevents him from asserting those claims in a federal habeas corpus proceeding absent cause and prejudice."); Wells v. LeFavre, 96 Civ. 3417, 1996 WL 692003 at *3 (S.D.N.Y. Dec. 2, 1996) ("CPL § 440.10(2) presents an adequate and independent state ground for denying Petitioner relief"), motion to vacate denied, 1997 WL 675335 (S.D.N.Y. Oct. 29, 1997).
Because there is an adequate and independent finding by the state trial court that Jamison procedurally defaulted this claim, Jamison would have to show in his habeas petition "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 v. Thompson, 501 U.S. at 750, 111 S.Ct. at 2565; see also pages 44-46 above. Here, Jamison has not alleged cause and prejudice nor has he made a showing of actual innocence. Thus, habeas review of Jamison's claim based on the prosecution's alleged failure to reveal exculpatory evidence is procedurally barred.
e.g., See also, e.g., Schlup v. Delo, 513 U.S. 298, 324-27, 115 S.Ct. 851, 865-67 (1995) (fundamental miscarriage of justice may be demonstrated by showing through "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial," that "it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence"); Ferguson v. Walker, 2001 WL 869615 at *8 n. 21 Simpson v. Portuondo, 2001 WL 830946 at *12; Simmons v. Mazzuca, 2001 WL 537086 at *11; Jones v. Duncan, 162 F. Supp.2d 213;Lugo v. Kuhlmann, 68 F. Supp.2d 347, 363 (S.D.N.Y. 1999) (Patterson, D.J. Peck, M.J.); Avincola v. Stinson, 60 F. Supp.2d at 145-46; Owens v. Portuondo, 1999 WL 378343 at *6; Torres v. Irvin, 33 F. Supp.2d at 264, 274; Williams v. Bennet, 1998 WL 236222 at *6; Farrington v. Senkowski, 19 F. Supp.2d at 180 ("The miscarriage of justice exception applies where a petitioner is 'actually innocent' of the crime of which he was convicted or the penalty which was imposed.").
V. JAMISON'S CLAIM THAT HE WAS DENIED DUE PROCESS BECAUSE OF MISSING TRANSCRIPTS HAS NO MERIT
Jamison argues that he "was denied his right to appeal . . . where the state courts inordinately delayed providing of crucial record transcripts for advancing a meritorious claim on the appeal and denied petitioner a reconstruction hearing to remedy the defect for transcripts unavailable." (Dkt. No. 4: Jamison 7/10/01 Br. at 40-42.) This argument has no merit.
"In order to prevail on his habeas claim that the Appellate Division infringed upon his right to a fair appeal, [Jamison] 'must show prejudice resulting from the missing or incomplete transcript." Santiago v. Coughlin, No. 96-2229, 107 F.3d 4 (table), 1997 WL 32924 at *1 (2d Cir. Jan. 8, 1997) (quoting Godfrey v. Irvin, 871 F. Supp. 577, 584 (W.D.N.Y. 1994)); see also United States ex rel. Cadogan v. LaVallee, 428 F.2d 165, 167 (2d Cir. 1970), cert. denied, 401 U.S. 914, 91 S.Ct. 887 (1971);United States ex rel. Hunter v. Follette, 307 F. Supp. 1023, 1025 (S.D.N.Y.), aff'd, 420 F.2d 779 (2d Cir. 1969), cert. denied, 397 U.S. 1067, 90 S.Ct. 1506 (1970).
First of all, Jamison did appeal, and argued before the First Department that the "missing transcripts prevent [Jamison] from advancing a meritorious claim of ineffective assistance of counsel for the failure to move for a speedy trial dismissal." (Ex. 17: Jamison 1st Dep't Br. at 36-41.) The First Department did not directly address the issue of the missing transcripts but held that "the existing record establishes that Jamison's counsel, after careful consideration, made an appropriate determination that a speedy trial motion would be unavailing." People v. McCorkle, 272 A.D.2d 273, 274, 709 N.Y.S.2d 519, 521 (1st Dep't), appeal denied, People v. Jamison, 95 N.Y.2d 890, 715 N.Y.S.2d 382 (2000) People v. McCorkle, 95 N.Y.2d 936, 715 N.Y.S.2d 612 (2000). In doing so, the First Department ruled on the merits, and is entitled to the deferential standard of review under the AEDPA, which looks to whether the state court decision is "unreasonable."
Jamison now raises the same claim he raised before the First Department, arguing that he "was not afforded a complete record of the transcripts on the many court appearances in order to determine the 'cause' for the State's delay in 'commencing the trial' . . . and a 'speedy trial issue' [could not] be determined from a sparse or incomplete record." (Dkt. No. 14: Jamison 10/29/01 Br. at 9-10.)
As discussed above, this Court's own review of the record, which now contains virtually all the pretrial calendar call minutes, establishes that there was no meritorious speedy trial motion. (See pages 29-32 above.) Jamison's claim based on the missing minutes therefore should be denied.
CONCLUSION
For the reasons set forth above, this Court should deny Jamison's habeas corpus petition and deny a certificate of appealability.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Richard M. Berman, 40 Centre Street, Room 201, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Berman. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989);Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).