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holding that state court's Brady determination was not contrary to, or involve an unreasonable application of, clearly established federal law, and therefore, did not provide grounds for habeas relief
Summary of this case from Nealy v. ArtestOpinion
97-CV-2063 (NG)
August 30, 2002
ORDER
On April 13, 1990, following a jury trial in New York State Supreme Court, Kings County, (Juviler, J.), petitioner was convicted of two counts of Manslaughter in the Second Degree and one count of Assault in the First Degree. The People's principal evidence was the testimony of two witnesses, Junior Alexander and Timothy Brantley. Brantley testified that on January 9, 1989, petitioner, Brantley, and Lovelle Jenkins, met with Michael Lewis at 189 Clifton Place in Brooklyn. Petitioner had an argument with Lewis because Lewis would not allow petitioner to sell crack-cocaine from an apartment at 189 Clifton Place. Brantley and Junior Alexander testified that that evening, petitioner, Brantley, Jenkins, and two other men, "Wise" and "Rashan," approached Lewis, his fiancee Lorraine Gaskill, and his friend Junior Alexander. Upon orders from petitioner, Wise and Rashan began shooting at Lewis, Gaskill, and Alexander with semi-automatic pistols, killing Lewis and Gaskill, and seriously injuring Alexander.
On February 17, 1992, petitioner, proceeding pro se, moved in the trial court for an order vacating his judgment of conviction pursuant to N.Y.C.P.L. § 440.10(1)(g) and (h). Petitioner, relying on evidence that the government's witness Junior Alexander owned the building at 189 Clifton Place and had a prior arrest for selling marijuana, claimed that newly discovered evidence warranted the vacating of his conviction, and that his conviction was obtained in violation of N.Y.C.P.L. § 240.45 and Brady v. Maryland, 373 U.S. 83 (1963). In an order dated May 21, 1992, the Court denied petitioner's motion, and petitioner's request for leave to appeal to the Appellate Division, Second Department, was denied on May 21, 1992.
On direct appeal, petitioner argued that his due process rights were violated because the prosecutor knew that the indictment was based on perjured testimony, there was insufficient evidence to support the conviction, and his sentence was excessive. On October 5, 1992, petitioner filed a pro se brief alleging that the trial court failed to inform him of the counts it would submit to the jury and that the trial court's jury instructions regarding accessory liability were improper. On June 9, 1993, petitioner's appellate counsel moved to enlarge the judgment roll on appeal to include the minutes of the jury selection proceedings, and to file a supplemental brief, if necessary. In support of this motion, appellate counsel submitted an affirmation stating:
2. In response to a questionnaire from my office, trial counsel has indicated that he has no recollection of whether a presence or other viable appellate issue will be found in the jury selection minutes of appellant's case. Therefore, we cannot exclude the possibility that such issues exist.
3. Under the circumstances, I cannot represent appellant in a manner which is consistent with due process of law or his right to counsel without having access to the minutes of jury selection.
The Appellate Division granted petitioner's motion to expand the judgment roll on December 17, 1992, but by letter dated March 1, 1994, appellate counsel indicated that he had received the jury selection minutes and that he would not be submitting a supplemental brief relating to jury selection. On May 23, 1994, the Appellate Division affirmed petitioner's conviction. People v. Jones, 204 A.D.2d 659 (2d Dept. 1994). On July 12, 1994, petitioner applied for permission to appeal to the New York Court of Appeals, which was denied on July 15, 1994. People v. Jones, 83 N.Y.2d 1004 (1994). The Court of Appeals then granted petitioner's motion for reconsideration but, upon reconsideration, denied permission to appeal. People v. Jones, 84 N.Y.2d 1033 (1995).
In a motion dated July 12, 1994, petitioner, through counsel, moved for a second time pursuant to N.Y.C.P.L. § 440.10 for an order vacating his judgment of conviction. He alleged that the government failed to disclose the full extent of the cooperation agreement with Timothy Brantley in violation of Brady and to turn over certain documents and an audiotape in violation of People v. Rosario, 9 N.Y.2d 286 (1961) and N.Y.C.P.L. § 240.45(1)(a). The Supreme Court, Kings County, denied the motion on December 1, 1994, and the Appellate Division denied petitioner's request for leave to appeal on February 2, 1995. The Court of Appeals denied petitioner's request for leave to appeal the February 2, 1995 order on February 12, 1996. By motion dated September 3, 1997, petitioner sought to renew his two previous motions to vacate his judgment of conviction pursuant to N.Y.C.P.L. § 440.10. In an order dated December 17, 1997, the Supreme Court, Kings County, denied petitioner's motion.
Petitioner filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on April 15, 1997. Upon respondent's motion, I dismissed the petition as untimely on February 3, 1998. Petitioner appealed the order to the Court of Appeals for the Second Circuit. While his appeal was pending, petitioner filed a motion with the Appellate Division seeking a writ of error coram nobis on July 22, 1998, alleging that his appellate counsel had been ineffective. By order dated November 23, 1998, the Appellate Division denied petitioner's motion for a writ of error coram nobis. On December 11, 1998, the Court of Appeals for the Second Circuit vacated my February 3, 1998 dismissal and remanded the matter for reconsideration in light of Smith v. McGinnis, 208 F.3d 13 (2d Cir. 2000).
Following reinstatement of his petition on December 21, 1998, petitioner filed a supplemental petition. In it, he claims that his indictment was based on knowingly perjured testimony, that the trial court abused its discretion by failing to conduct a hearing to determine whether the indictment was based on knowingly perjured testimony, that the prosecutor failed to disclose the full extent of Brantley's cooperation agreement, that the prosecutor failed to disclose Junior Alexander's prior conviction and knowingly used perjured testimony when it questioned Junior Alexander about his prior convictions, that the prosecutor failed to disclose that Hyden Alexander, not Junior Alexander, owned 189 Clifton Place, that the Supreme Court, Kings County, improperly denied his motion to reconsider the denial of his motions to vacate judgment, that the trial court's charge on accessory liability was deficient, that the trial court improperly submitted to the jury a count of first-degree assault as a lesser-included offense to attempted murder in the second degree, that the court failed to inform petitioner before the charge that it so intended to charge the jury, and that he was denied effective assistance of appellate counsel.
While his amended petition was pending before this court, petitioner, proceeding pro se, moved the Supreme Court, Kings County, for a third time for an order vacating his judgment of conviction pursuant to N.Y.C.P.L. § 440.10, claiming that he was not present at hearings held pursuant to People v. Sandoval, 34 N.Y.2d 371 (1974), and People v. Ventimiglia, 52 N.Y.2d 350 (1981). The motion was denied on March 8, 2000, and petitioner's application for leave to appeal was denied by the Appellate Division on June 5, 2000. Petitioner now moves to amend his petition again to add a presence at Sandoval and Ventimiglia claim. That motion is hereby granted.
Respondent now concedes that the petition is timely, but, for the following reasons, the petition for a writ of habeas corpus is denied.
1. Knowing Use of Perjured Grand Jury Testimony and Failure to Hold a Hearing Claims:
Petitioner's claim of defective grand jury proceedings is procedurally barred and is not grounds for habeas relief. Federal habeas review of a state conviction is prohibited if a state court judgment is based on an "adequate and independent state ground," Harris v. Reed, 489 U.S. 255, 261 (1989), such as a state procedural bar rule. In this case, the Appellate Division held that:
A motion to dismiss an indictment must normally be made within 45 days after arraignment. Such a motion can also be made at any time prior to sentencing upon a showing of good cause for the delay (CPL 210.20, 255.20[1], [3]). In the case at bar, the defendant learned prior to commencement of jury selection of the allegedly perjured testimony by one of the witnesses before the Grand Jury. Since he did not timely move to dismiss the indictment on the ground that he now asserts, he is barred from now asserting any claims that there were defects in the Grand Jury Proceeding.
People v. Jones, 204 A.D.2d 659 (1994). Thus, the Appellate Division clearly stated that it relied on a procedural bar, see Jones v. Stinson, 229 F.3d 112, 118-19 (2d Cir. 2000), and this finding is supported by a "fair or substantial basis" in the law, namely CPL 210.20, 255.20(1)(3), which requires a motion to dismiss to be filed, at the latest, prior to sentencing. See Garcia v. Lewis, 188 F.3d 71, 77-82 (2d Cir. 1999). Therefore, the Appellate Division's judgment was based on an adequate and independent state law ground. Moreover, petitioner has not overcome this procedural default by showing cause and prejudice for the default, Coleman v. Thompson, 501 U.S. 722, 750 (1991), or by showing a "fundamental miscarriage of justice" by making a colorable claim of factual innocence. McCleskey v. Zant, 499 U.S. 467, 495 (1991).
Even if petitioner's claims of deficiencies in state grand jury proceedings were not procedurally barred, they are not a cognizable basis for habeas relief. See United States v. Mechanik, 475 U.S. 66, 89 (1986); Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989). The "petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendants were guilty as charged, but also that they are in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt." Mechanik, 4475 U.S. at 89.
Petitioner's claim that the trial court failed to hold a hearing regarding alleged grand jury perjury raises an issue of state law and, since the grand jury claim does not raise a constitutional issue, the failure of the state court to hold a hearing regarding this claim is not grounds for habeas relief.
2. Brady. Knowing Use of Perjured Testimony. and Denial of Motion to Reconsider Claims:
Petitioner next argues that the prosecutor violated petitioner's due process rights under Brady v. Maryland, 373 U.S. 83, 87 (1963), when he failure to disclose a 1982 arrest of Junior Alexander for selling marijuana, the full extent of the cooperation agreement with Brantley, and that Hayden Alexander, not Junior Alexander, owned 189 Clifton Place; that the prosecutor knowingly used perjured testimony by failing to mention Junior Alexander's prior marijuana arrest when questioning Alexander about his criminal history; and that the state court erred when it denied petitioner's motion to reconsider the denial of his motions to vacate his judgment on Brady grounds pursuant to N.Y.C.P.L. § 440.10. Petitioner's claim regarding Brantley's cooperation agreement is procedurally barred, and in any event lacks merit. The remaining claims also lack merit.
Petitioner raised his claim that the government failed to disclose the full extent of Brantley's cooperation agreement in his second motion to vacate the judgment of conviction pursuant to N.Y.C.P.L. § 440.10. The Supreme Court, Kings County, in rejecting the motion to vacate, clearly stated that "defendant's motion is denied as procedurally barred" because petitioner was in a position to raise the issue in his previous motion. The Court held that petitioner could have inspected Brantley's sentence to determine whether the cooperation agreement as it was carried out was in accord with the cooperation agreement as it was described at the trial. See N.Y.C.P.L. § 440.10(3)(c); Jones v. Stinton, 229 F.3d at 118-19. This finding is supported by a fair or substantial basis in state law. Garcia, 188 F.3d at 77-82. While the Supreme Court, Kings County, held that the claim lacked merit in an alternative holding, "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." Harris, 489 U.S. at 264 n. 10; Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990). Moreover, petitioner has not overcome this procedural default by showing cause and prejudice for the default, Coleman, 501 U.S. at 750, or by showing a "fundamental miscarriage of justice" by making a colorable claim of factual innocence. McCleskev, 499 U.S. at 495.
Even if this claim were not procedurally barred, it lacks merit. Brady requires the government to disclose information within its possession or knowledge, favorable to the defendant, that is material either to guilt or to punishment. Brady, 373 U.S. at 87; United States v. Agurs, 427 U.S. 97, 103-07 (1976). The prosecution must disclose evidence of understandings or agreements as to prosecutions of cooperating witnesses. Gigho v. United States, 405 U.S. 150, 154-55 (1972); Jenkins v. Artuz, 294 F.3d 284, 292-93 (2d Cir. 2002).
In this case, on January 4, 1998, Brantley pled guilty to Manslaughter in the Second Degree and Criminal Possession of a Weapon in the Second Degree under Indictment Number 4648/87 for the shooting of Ali Johnson. The plea was not a negotiated plea with the People. Rather, petitioner pled guilty, and the Court promised to sentence him to six months' imprisonment and five years' probation, provided certain conditions were met. On January 9, 1989, prior to being sentenced under Indictment Number 4648/87, Brantley was arrested for the incident in this case, and charged under Indictment Number 63 2/89. On January 26, 1990, he pled guilty to Manslaughter in the First Degree in full satisfaction of Indictment Number 632/89. As part of this plea, Brantley signed an agreement with the People, in which, in exchange for his truthful testimony, the District Attorney's Office agreed to accept the following disposition:
— Under Indictment #4648/87 to which the defendant Timothy Brantley has previously entered a plea of guilty to manslaughter in the second degree, the "Office" will recommend a sentence of not less than three years nor more than nine years at the time of sentence.
— Under Indictment #632/89 it is agreed that the "Office" will permit Timothy Brantley to enter a plea of guilty to a single count of manslaughter in the first degree in full satisfaction of this indictment and will recommend a sentence of not less than three years nor more than nine years to run concurrently with the sentence under Indictment #4648/87.
The plea agreement also provided for "special arrangements" to be made, upon Brantley's request, with the New York City Department of Corrections and the New York State Department of Correctional Services, in order to assure Brantley's protection. No mention was made of the remaining count of Criminal Possession of a Weapon in the Third Degree under Indictment 4648/87.
The People provided defense counsel a copy of this written plea agreement, the plea minutes from the January 26, 1990 plea, a copy of Brantley' s criminal history report, and the official Supreme Court file for Indictment 4648/87 before counsel cross-examined Brantley. On May 11, 1990, Brantley was sentenced. At sentencing the following occurred:
THE COURT: The defendant is sentenced to three to nine years in jail on each indictment to run concurrent on each. Penalty assessment is waived.
THE CLERK: On indictment 643 of `89, it's three to nine. On the other, there are two counts.
THE COURT: On the manslaughter in the second degree, it's three to nine. On the possession of a weapon in the third degree, it's two to six. All the sentences to run concurrent.
Petitioner argues that the People failed to disclose the additional benefit of having his 2 to 6 year sentence for the weapons possession charge run concurrent to the other sentences. However, as the state court noted in denying petitioner's second motion to vacate pursuant to N.Y.C.P.L. § 440.10 in this case, the People had disclosed, prior to defense counsel's cross-examination of Brantley, the Supreme Court file for Indictment Number 4648/87, which indicated that Brantley pled guilty to both a manslaughter and a criminal possession of a weapon count, and defense counsel was free to cross-examine Brantley about the relationship between the two counts in Indictment Number 4648/87 and the manslaughter count in 643/89. The state court also held that:
[a]s a practical matter.., any sentence imposed upon the two counts of 4648/87 had to be imposed concurrently because the two crimes alleged did not involve disparate and separate acts, P.L. 70.25(2), and would be subsumed therefore within the longer term of three to nine years' imprisonment that was due to be imposed pursuant to the cooperation agreement. There is no reasonable possibility that nondisclosure of the concurrent prison term of two to six years affected the jury's verdict; therefore, no ground for vacating the judgment has been shown.
Petitioner has not shown that this holding by the state court was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).
Petitioner also argues that the sentencing court's recommendation that Brantley serve his sentence at Elmira Correctional facility and the waiver of Brantley's mandatory surcharge were additional benefits. However, as the state court held, these actions were either contemplated by the cooperation agreement or a matter of the sentencing court sua sponte exercising its discretion. Finally, petitioner claims that Brantley received the additional benefit of having the District Attorney's Office write the Parole Board to help Brantley obtain early release. In support of this claim, petitioner relies on an affidavit from Anthony Glaude, a fellow inmate, claiming that Brantley informed Glaude, who was Brantley's long-time friend, that the District Attorney's Office wrote to the Parole Board on Brantley's behalf to help him obtain early release, and two documents from the New York State Division of Parole, which petitioner claims substantiate this claim. However, the New York State Division of Parole documents merely indicate that the District Attorney's Office submitted a recommendation with respect to Brantley's parole, not the contents of the recommendation. As the state court held in denying petitioner's motion to reconsider the denial of his two motions to vacate his judgment pursuant to N.Y.C.P.L. § 440.10:
[W]ith respect to Anthony Glaude's affidavit.., the People have submitted a copy of a November 1, 1991, letter from their office to the Parole Division regarding Timothy Brantley's parole eligibility which states, "the District Attorney strongly opposes any early release consideration.". . . Therefore, under the facts of this case, the court exercises its discretion and denies defendant's claim pursuant to CPL § 440.30(4)(c) because his allegations regarding the People's cooperation agreement with Timothy Brantley is conclusively refuted by unquestionable documentary proof.
Petitioner has not shown that this holding was contrary to, or involved an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).
Likewise, petitioner's claims that the prosecutor violated Brady when it failed to disclose Junior Alexander's 1982 sale of marijuana conviction, and that he knowingly used perjured testimony when he asked Junior Alexander about his prior criminal history, lack merit. Petitioner has not shown that the prosecution knew, or should have known, about this prior marijuana arrest. See Brady, 373 U.S. at 87. In holding that the prosecution did not violate Brady, or knowingly use perjured testimony, the state court found that the prosecution did not have knowledge of the prior marijuana arrest, which was under seal, stating:
[T]he prosecutor was diligent and made every effort to obtain a complete arrest history for this witness. His request for a "NYSPIN". . . report (an official arrest record) was returned as producing no record. A computer check in the District Attorney's Office then revealed information about three arrests for Alexander, which the prosecutor provided to the defense.
Since petitioner has not shown that this decision was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, he is not entitled to habeas corpus relief. 28 U.S.C. § 2254(d)(2).
Furthermore, there is no reasonable probability that, had this evidence been disclosed to petitioner, the result of the proceeding would have been different. Brady, 373 U.S. at 87; Agurs, 427 U.S. at 103-07. It is unlikely that the jury would have been affected by this ten year old conviction, even if it had been admitted by the trial judge, because Junior Alexander had already been crossexamined about his three prior arrests and convictions, his prior use of marijuana, and his admission that he lied to the grand jury. Further, Alexander's account of the shooting was generally consistent with the testimony of Brantley.
Finally, petitioner claims that the prosecutor violated Brady when he failed to disclose that Hayden Alexander, not Junior Alexander, owned 189 Clifton Place. However, as the state court ruled:
[T]his information would not have been "material" to the facts in issue, nor was it "probable" that it would have affected the verdict. The testimony concerning the ownership of the building was introduced as background information, in order to put the shooting, which occurred on the street, in context. Moreover, whatever the legal status of the building, the testimony of Junior Alexander, and the other eyewitness, Timothy Brantley, would still have shown that Hyden Alexander who lived in the building, was in control of the drug business being conducted there.
This ruling is not contrary to, nor does it involve an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).
Since all of petitioner's Brady claims lack merit, the state court did not violate the Constitution when it denied petitioner's motion to reconsider his motion to vacate his judgment pursuant to N.Y.C.P.L. § 440.10 based on these claims.
3. Jury Instruction Claims:
Petitioner's claims that errors in the jury instructions denied petitioner his due process rights are not, as respondent argues, procedurally barred. The Appellate Division does not specify whether these claims were either not preserved for appellate review or were meritless, and there is no way to determine circumstantially that the court declined to review them on procedural grounds. Therefore, this court may consider petitioner's claims. See Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998); Santana v. Fillion, 55 F. Supp.2d 136, 139 (E.D.N.Y. 1999).
Upon review, these claims lack merit. Petitioner first argues that the trial court violated his due process rights by giving an erroneous instruction on accessory liability. Before a federal court may overturn a conviction based upon a challenged jury charge, it must determine "not merely that the instruction [was] undesirable, erroneous, or even `universally condemned,' but that it violated some right which was granted to the defendant by the Fourteenth Amendment." Cupp v. Naughten, 414 U.S. 141, 146 (1973). Without such a showing, "a jury charge in a state trial is normally a matter of state law and is not subject to federal habeas corpus review." United States ex rel Stanbridge v. Zelker, 514 F.2d 45, 50 (2d Cir. 1975), cert denied, 423 U.S. 872 (1975); see also Henderson v. Kibbe, 431 U.S. 145, 155-57 (1977) (holding that an omission or incomplete instruction is less likely to be prejudicial than a misstatement of law because of the speculative nature of concluding that a jury might have reached a different verdict pursuant to an additional instruction).
In this case, the trial court gave the following instruction on accessory liability:
For all of the charges the defendant is alleged to have been acting in concert with other people. For example, it is not charged that the defendant, Mr. Jones, actually shot anyone or actually possessed a weapon. He is alleged to have acted in concert with persons who did.
The law relating to acting in concert is as follows:
"When one person commits a crime another person is criminally liable for it when acting with the mental culpability required for the crime he solicits, requests, commands or intentionally aids the first person to commit that crime."
If we apply that definition to the definitions of all the charges we find what the elements are of each charge in this case and that's what I'm going to discuss with you now.
Tr. 891-92. Petitioner argues that this instruction was erroneous because it omits the term "importunes." N.Y. Penal Law § 20.00 provides that "[w]hen one person engages in conduct which constitutes an offense, another person is criminally liable for such conduct when, acting with the mental culpability required for the commission thereof he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct." However, the instruction given was more favorable to petitioner than the statute's definition of accessory liability because it omitted an action for which petitioner could be held criminal liable under the N.Y. Penal Law, and the omission of the term "importunes" from a list of similar verbs did not "so infect the entire trial that the resulting conviction violates due process." Cupp, 414 U.S. at 147.
Petitioner next argues that the trial court deprived him of a fair trial by submitting a "reckless assault" count as a lesser included offense to an attempted murder count without informing petitioner of his intent to do so prior to the charge. However, at a charging conference prior to charging the jury, the trial judge informed the parties that "I'll submit attempted murder, and in the alternative depraved indifference assault." Both parties consented to this charge, and the trial judge instructed the jury that:
If you find him not guilty of attempted murder then you will consider assault in the first degree.
A person commits assault in the first degree when under circumstances evincing depraved indifference to human life he recklessly engages in conduct that creates a grave and unjustifiable risk of death to another person and causes serious physical injury to another person.
Tr. 692, 910-11. Therefore, respondent had notice of how the trial judge was going to charge the jury and did not object.
4. Presence at Sandoval and Ventimiglia Hearing Claim:
Petitioner's claim that he was not present at a Sandoval and Ventimiglia hearing in violation of People v. Dokes, 79 N.Y.2d 656 (1992), is procedurally barred. Petitioner raised this issue in a third motion to vacate the judgment of conviction pursuant to § 440.10. The Supreme Court, Kings County, in rejecting this claim, clearly stated that:
Defendant's claim . . . is procedurally barred, pursuant to CPL 440.10(2)(c), because the defendant could have raised this claim as part of his direct appeal but failed to do so.
Dokes was decided on June 11, 1992, two months after defendant's appellate counsel filed his initial appellate brief, but one full year before counsel moved to enlarge the judgment role on appeal to include the minutes of the jury selection and to file a supplemental brief, if such was required. Six months thereafter, on December 7, 1993, the Second Department granted defendant's application to expand the judgment role and to file a supplemental brief.
Even with the additional time, counsel failed to raise a Dokes claim [in] his moving papers. In addition, the defendant filed a supplemental, pro se, appellate brief four months after Dokes was decided, but did not raise a Dokes claim in his brief. Clearly, the appellate could have ordered minutes of the hearings and filed them with the Appellate Division, if he believed that there was an arguable issue.
This finding is supported by a fair or substantial basis in state law. Garcia, 188 F.3d at 77-82; N.Y.C.P.L. § 440.10(2)(c).
Moreover, petitioner has not overcome this procedural default by showing cause and prejudice for the default, Coleman, 501 U.S. at 750, or by showing a "fundamental miscarriage of justice" by making a colorable claim of factual innocence. McCleskey, 499 U.S. at 495. Ineffective assistance of appellate counsel, if established, can constitute "cause" excusing the procedural default, see Edwards v. Carpenter, 529 U.S. 446, 451 (2000), but "[a]ttorney error short of ineffective assistance of counsel does not constitute cause for a procedural default even when that default occurs on appeal rather than at trial." Murray v. Carrier, 477 U.S. 478 (1986). In this case, as discussed below, petitioner has not shown that his appellate counsel was ineffective for failing to raise this claim.
Even if petitioner's claim were not procedurally barred, it does not raise a ground for habeas relief. A Sandoval hearing is held, upon a defendant's request, to determine the extent to which he will be subject to impeachment by cross-examination about prior bad acts if he testifies, and a Ventimiglia hearing is held to determine whether evidence of uncharged crimes are admissible as direct evidence. Petitioner asks me to reconsider my rulings in Miller v. Portuondo, 151 F. Supp.2d 245, 249 (E.D.N.Y. 2001), and Williams v. McCoy, 7 F. Supp.2d 214, 220 (E.D.N.Y. 1998), but I adhere to my determination that a defendant's absence from a Sandoval or Ventimiglia hearing is not a violation of the federal Constitution, and thus does not state a ground for habeas relief. As stated in those cases, while a defendant has an absolute right under New York law to be present at Sandoval and Ventimiglia hearings, that right does not derive from federal constitutional principles. See id. (citing People v. Favor, 82 N.Y.2d 254, 262 (1993)). Moreover, unlike the state rule, if federal habeas corpus relief were available on such a claim, a showing of prejudice, which has not been made here, would undoubtably be required.
5. Effective Assistance of Appellate Counsel:
In order to prevail on an ineffective assistance of counsel claim, a petitioner must show both that counsel's performance fell below the objective standards of reasonableness dictated by prevailing professional norms and that there is a reasonable probability that, but for counsel's deficient performance, the outcome of the proceedings would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). The Strickland standard applies to appellate as well as to trial counsel. Mayo v. Henderson, 13 F.3d 528 (2d Cir.), cert. denied, 513 U.S. 820 (1994). On appeal, counsel is not required to argue every non-frivolous issue; the better strategy may be to focus on a few more promising issues so as not to dilute the stronger arguments with a multitude of claims. Jones v. Barnes, 463 U.S. 745, 751-53 (1983). As the Supreme Court has noted:
Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, or at most on a few key issues. . . . A brief that raises every colorable issue runs the risk of burying good arguments.., in a verbal mound made up of strong and weak contentions.
Id. Reviewing courts should not second-guess the reasonable decisions of appellate counsel to press certain issues instead of others; inadequate performance is established only if counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker. Id. at 754; Mayo, 13 F.3d 533.
In the appellate context, the prejudice prong of Strickland requires a showing of a reasonable probability that the unraised claim would have been successful before the state's highest court. Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992), cert. denied 508 U.S. 912 (1993). A "reasonable probability" in this context is one that undermines confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694. In addition, since this petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which mandates deference to state court decisions, petitioner must show that the state court decision denying relief was contrary to, or involved an objectively unreasonable application of, clearly established federal law, as determined by the Supreme Court in order to prevail on either of his ineffective assistance of counsel claims. 28 U.S.C. § 2254(d)(1); Sellan v. Kuhlman, 261 F.3d 303, 308-14 (2d Cir. 2001).
In this case, petitioner has not shown that the Appellate Division's determination that his appellate counsel was effective is contrary to, or involves an unreasonable application of, clearly established federal law. See id.; Jenkins, 294 F.3d at 291. Appellate counsel clearly was aware that a potential claim under Dokes existed. He moved to enlarge the judgment roll on appeal to include the minutes of the jury selection proceedings, and to file a supplemental brief, if necessary. In support of this motion, appellate counsel submitted an affirmation stating he could not exclude the possibility that an appellate issue would be found in the jury selection minutes. On March 1, 1994, appellate counsel wrote to the Appellate Division stating that he had received the jury selection minutes and that he would not be submitting a supplemental brief relating to jury selection. While the jury selection minutes did not include the Sandoval/Ventimiglia hearing, it is undisputed that petitioner's appellate counsel contacted the court reporter, who read the minutes from the Sandoval hearing to appellate counsel and informed appellate counsel that her notations indicated that petitioner was present at the Sandoval hearing. Under these circumstances, appellate counsel's performance was not deficient because he performed a reasonable investigation into the viability of a claim under Dokes, and reasonably winnowed down the issues on appeal based on the information gained from this investigation. Petitioner argues that this was insufficient and that appellate counsel should have obtained the minutes (which petitioner did obtain after the direct appeal). However, petitioner fails to show that it was an unreasonable strategy to rely on statements from the court reporter that petitioner was present at the hearing and focus his investigation and resources on other issues.
CONCLUSION
The petition for a writ of habeas corpus is denied.
As petitioner has failed to make a substantial showing of the denial of a constitutional right, a certificate of appealability is denied.
SO ORDERED.