Jones v. Spitzer

Full title: CHARLES JONES, Petitioner, v. ELIOT SPITZER, Attorney General, State of…

Court: United States District Court, S.D. New York

Date published: Mar 26, 2003

01 Civ. 9754 (HB) (GWG) (S.D.N.Y. Mar. 26, 2003)

Opinion

01 Civ. 9754 (HB) (GWG)

March 26, 2003

Charles Jones, Pro Se, New York, NY, For Petitioner.

Amyjane Rettew, Assistant District Attorney, New York, NY, For Respondent.

REPORT AND RECOMMENDATION To the Honorable Harold Baer United States District Judge

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Charles Jones, proceeding pro se, has filed this petition under 28 U.S.C. § 2254 for a writ of habeas corpus seeking to overturn a judgment of conviction imposed in a New York State court. For the reasons stated below, the petition should be denied.

I. BACKGROUND A. Jones' First Trial

In 1993, Jones was indicted and charged with Burglary in the Second Degree, Criminal Possession of Stolen Property in the Fourth Degree, and Criminal Possession of a Weapon in the Fourth Degree. See Jones v. Vacco, 126 F.3d 408, 410-11 (2d Cir. 1997). After a jury trial before Justice Richard Andrias of Supreme Court, New York County, Jones was convicted of all charges. Id. at 411. On April 6, 1994, Jones was sentenced to a term of 1-1/2 to 4-1/2 years imprisonment.

Jones appealed his sentence to the Appellate Division, First Department on numerous grounds. On May 9, 1996, the Appellate Division affirmed the conviction. See People v. Jones, 227 A.D.2d 195 (1st Dep't 1996). On June 11, 1996, the New York Court of Appeals denied Jones leave to appeal. See People v. Jones, 88 N.Y.2d 937 (1996). Jones was represented by retained counsel throughout the trial and appeal.

B. Jones' First Habeas Petition

On June 27, 1996, Jones filed a federal petition for a writ of habeas corpus arguing, inter alia, that he had been denied his Sixth Amendment right to counsel. See Jones v. Vacco, 944 F. Supp. 229, 230 (S.D.N.Y. 1996). Specifically, Jones alleged that Justice Andrias had prevented him from consulting with counsel for four days while on recess from his cross-examination. See id. at 230-31. The prosecution conceded that a ban had been put into effect for one day; but argued that it had been lifted the next day by Justice Andrias. Id. at 234. United States District Judge Shira A. Scheindlin ordered an evidentiary hearing to determine whether Justice Andrias had in fact lifted the ban. See id. at 235. On September 19, 1996, Judge Scheindlin issued a decision granting the writ on the ground that the State had not proven that the ban had been lifted. See Jones v. Vacco, 1996 WL 535544, at *3 (S.D.N.Y. Sept. 19, 1996). The court ordered that Jones "must either be released or given a new trial within 30 days." Id.

The State appealed Judge Scheindlin's ruling to the United States Court of Appeals for the Second Circuit. On October 2, 1997, the Second Circuit affirmed. See Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997).

C. Proceedings before Justice Berkman

Shortly after Judge Scheindlin issued the writ of habeas corpus (but before the Second Circuit affirmed her decision), proceedings for Jones' retrial began in Supreme Court, New York County before Justice Carol Berkman.

On October 3, 1996, Jonathan Oberman — one of the attorneys representing Jones in his original habeas action — appeared before Justice Berkman to make an application to release Jones on bail. See Transcript, dated October 3, 1996, at 2-24. The application was denied. See id. at 38-39.

On October 16, 1996, Oberman sought to enter a "limited" or "partial" appearance, which Justice Berkman refused to allow. See Transcript, dated October 16, 1996, at 2-3. Oberman then indicated that Jones intended to proceed pro se, but asked that Justice Berkman assign Jones counsel to function as a "legal adviser." Id. at 3. Justice Berkman, however, postponed any ruling on whether she would appoint Jones a legal adviser. Id. at 6.

At an October 18, 1996 conference, the State indicated that it would appeal Judge Scheindlin's ruling but recognized that Judge Scheindlin's order required that Jones be released that day — 30 days after her ruling. See Transcript, dated October 18, 1996, at 2. At this conference, Jones appeared without counsel. When he began to address the issue of his representation, Justice Berkman stated that Jones had not yet proven that he was unable to afford counsel and thus declined to assign counsel to represent him. Id. at 3-5. The record reflects subsequent court appearances on November 15, 1996 and December 18, 1996. Jones represented himself at these conferences, which did not deal with Jones' pro se status but instead focused on issues regarding a protective order that had been issued against Jones.

Jones moved for modification of the protective order against him, for the issuance of a protective order in his favor, for Justice Berkman to recuse herself, and for counsel to be appointed. Justice Berkman denied these applications. See Order, dated January 21, 1997 ("Berkman Order") (reproduced in Index of Exhibits submitted by Respondent (undated) ("Exhibit Index"), Vol. V, Ex. E), at 1-3. As to Jones' motion for appointment of counsel, Justice Berkman wrote Defendant has made conclusory claims of indigence, claims which are clearly

contradicted by the value of the real estate he owns in this city and in Connecticut. Accordingly this court has denied the requests for assignment of counsel for this defendant, who has been represented by retained counsel throughout his trial and the subsequent appeals as well as the habeas corpus petition.

Id. at 3 (emphasis in original).

The next day, on January 22, 1997, the State informed Justice Berkman that the Second Circuit had appointed Barry Scheck as Jones' counsel for the habeas appeal. See Transcript, dated January 22, 1997, at 1. Justice Berkman ordered the State to provide her with whatever papers were provided to the Second Circuit when they appointed Scheck as Jones' appellate counsel. Id. at 1-2. The court adjourned the proceedings until a later hearing date scheduled to be held April 9, 1997. See id. at 3. The record contains no transcript of any hearing held in April 1997.

On October 8, 1997, the State informed Justice Berkman that the Second Circuit had affirmed Judge Scheindlin's decision and that the State intended to re-try Jones. See Transcript, dated October 8, 1997, at 2. Jones then informed Justice Berkman of an Article 78 proceeding he had brought to the Appellate Division seeking the appointment of counsel. Id. at 3-4. Justice Berkman continued to refuse to appoint counsel, stating that the uncontradicted information before her showed that Jones was able to afford a lawyer. Id. at 4-7. The Appellate Division denied Jones' Article 78 petition to appoint counsel. See Order (undated) (reproduced in Amended Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody, filed November 29, 2001 ("Amended Petition"), Ex. K), at 1.

D. Pre-trial Proceedings before Justice Obus

Jones' case was thereafter re-assigned to Justice Michael J. Obus. At an initial conference before him on November 5, 1997, Justice Obus signed a continued order of protection and set a follow-up conference for November 14. See Transcript, dated November 5, 1997, at 9-10. Justice Obus refused to rule on the issue of whether Jones should be assigned counsel as Jones' motion for counsel to be assigned was still pending before the Appellate Division at that time. See id. at 5. There is no record of a conference on November 14.

On January 21, 1998 and February 2, 1998, Jones moved to dismiss the indictment for a violation of his Sixth Amendment right to counsel; to dismiss for failure to hold a speedy trial; to dismiss in the interests of justice; or for a new suppression hearing due to prosecutorial misconduct and perjury. See Notice of Motion, dated January 21, 1998 (reproduced in Amended Petition Ex. J); Notice of Motion, dated February 2, 1998 (reproduced in Amended Petition Ex.I); Decision, dated April 29, 1998 ("April 29 Dec.") (reproduced in Exhibit Index, Vol. V, Ex.G), at 1-2. With respect to the appointment of counsel claim, the State argued, inter alia, that Jones had significant assets at his disposal. Specifically, the State noted that Jones lived in an expensive home held in his wife's name in Greenwich, Connecticut that was worth at least $500,000. See Affirmation in Response to the Defendant's Notice of Motions, dated March 19, 1998 (reproduced in Exhibit Index, Vol. V, Ex. F), ¶¶ 16-17, 19, 21. The State also noted that Jones had been able to retain counsel throughout his first trial and appeal, see id., ¶ 14, and had been able to post $5,000 bail following his arraignment prior to the second trial. See id., ¶ 20.

During a conference on March 4, 1997, Justice Obus extended the order of protection but refused to rule on Jones' other pending motions. See Transcript, dated March 4, 1998, at 7. On April 29, 1998, Justice Obus issued a written order responding to Jones' motions. Justice Obus denied Jones' motions to dismiss in their entirety. See April 29 Dec. at 2-5. The court rejected Jones' speedy trial claim, on the ground that, at most, only four months of time chargeable to the State had accrued. Id. at 2-3; see also New York Criminal Procedure Law ("CPL") § 30.30(1)(a) (State must be trial-ready within six months after commencement of felony action). Justice Obus also denied Jones' request to dismiss the indictment in the interest of justice or for a new suppression hearing as Jones failed to present the court with "additional pertinent facts" that warranted dismissal or a de novo hearing. April 29 Dec. at 3-4. As for Jones' motion for appointment of counsel, the court noted the State had produced evidence that Jones owned valuable properties and had concealed assets. See id. at 4. Accordingly, Justice Obus ordered that a hearing be held on the issue of Jones' eligibility for appointed counsel. Id. at 5.

The hearing was held in May 1998. See Reply Brief for Petitioner, filed July 18, 2002 ("Reply Brief"), at 44; Memorandum of Law in Support of Answer Opposing Petition for a Writ of Habeas Corpus, filed June 7, 2002 ("Resp. Mem."), at 13. Following the hearing, Justice Obus ordered that Jones be assigned counsel and Harold Ramsey was appointed Jones' attorney. (See Tr. 11). Almost a year passed before the beginning of Jones' second trial. While the record presented on this petition does not contain transcripts of any proceedings that occurred during this period, the respondent states that he has produced all transcripts of proceedings in his possession. See Letter to the Court from Amyjane Rettew, dated July 2, 2002 (Docket #24), at 2.

On March 26, 1999, the week before his second trial was scheduled to begin, Jones asked to proceed pro se. Transcript, dated March 26, 1999 (reproduced in Exhibit Index, Vol. I, Ex. B), at 4-7. Justice Obus granted the request on April 1, 1999, and appointed Ramsey to remain as an attorney-advisor. Trial Transcript ("Tr.") (reproduced in Exhibit Index, Vols. I-IV, Ex. C), at 270-75. The trial proceeded as scheduled.

E. Jones' Second Trial

During his second trial, Jones was charged with the same crimes as in the first trial: Burglary in the Second Degree, N.Y. Penal L. § 140.25; Criminal Possession of Stolen Property in the Fourth Degree, N.Y. Penal L. § 165.45; and Criminal Possession of a Weapon in the Fourth Degree, N.Y. Penal L. § 265.01.

1. Summary of the Prosecution's Evidence. a. The elements of the charges.

The prosecution's case centered on: (1) Jones' entry into the apartment of Marla Maples on July 13, 1992, which was captured on videotape; (2) the presence in Jones' office of a large number of items belonging to Maples (including shoes) found during the execution of a search warrant on July 15, 1992; and (3) the presence in Jones' office of unlicensed firearms, also found during the search.

To prove the burglary charge, the prosecution had to show that Jones knowingly entered Maples' residence with the intent to commit a crime (in this case, larceny) without a license or privilege to enter. See N.Y. Penal L. §§ 140.25, 140.00(5). The State's evidence consisted largely of the videotape showing Jones' entry into Maples' apartment, testimony showing that Maples' property was recovered from Jones' office and the testimony of witnesses who stated that Jones — who had had a business relationship with Maples — did not have permission to enter Maples' apartment To prove criminal possession of stolen property, the prosecution was required to prove Jones knowingly possessed stolen property with the intent to benefit himself or another where the value of the property exceeded $1,000. See N.Y. Penal L. § 165.45(1). The State introduced evidence showing that Jones had knowingly possessed items of Maples, primarily shoes. The proof of the value of the property was tied to the issue of whether there existed a market for used shoes. This is because the parties stipulated that if no market for used shoes existed, the replacement value of the shoes was over $1,000. (Tr. 2330). If, however, the jury found a market for used shoes did exist, the parties agreed the value of the shoes would be under $1,000 and thus Jones could not be convicted of the criminal possession of stolen property charge.

Finally, to prove criminal possession of a weapon, the State needed to show Jones unlawfully possessed an operable dangerous weapon. See N.Y. Penal L. §§ 265.01(1), (4); People v. Longshore, 86 N.Y.2d 851, 852 (1995). The State called witnesses to testify about certain antique guns found in Jones' office and an expert witness who testified about the operability of these firearms.

b. The prosecution witnesses.

The Prosecution called the following witnesses: Marla Maples, who testified about Jones' lack of permission to be in her apartment, her relationship with Jones, the items missing from her home, the videotape showing Jones in her apartment, and the discovery of her missing property in Jones' office (Maples: Tr. 296-1113, 1992-2039); Ann Ogletree (also referred to as "Ann Maples"), Maples' mother, who testified about many of the same matters (Ogletree: Tr. 1137-1304); Kevin Hynes, a former district attorney from the first trial, who testified about documents introduced by Jones in the first trial that were purportedly forged and thus showed a consciousness of guilt (Hynes: Tr. 1319-57); Steven Adamo, a security officer for the Trump Organization, who testified about the security in Maples' building and the videotape (Adamo: Tr. 1363-88); Police Officer Brian Higgins, who testified about Jones' arrest and the items found in Jones' apartment on July 15, 1992 (Higgins: Tr. 1389-1414, 1578-1627); Janie Elder, a friend of Maples, who testified about Jones' relationship with Maples, the videotape, Jones' stealing of her keys to Maples' apartment and their subsequent discovery in Jones' office, as well as the discovery of other items in Jones' office (Elder: Tr. 1421-1565); Matt Calamari, the director of security for the Trump Organization, who testified about the burglary, the videotape, and the discovery of the items in Jones' office (Calamari: Tr. 1627-1803); Gus Lesnevich, a handwriting expert, who testified about the documents introduced during the first trial that the State alleged were forgeries (Lesnevich: Tr. 1849-1920); Police Officer Robert Gianetta, who testified about the discovery of the items in Jones' office (Gianetta: Tr. 1921-56, 2041-53, 2090-2135, 2174-2220, 2224-49); Assistant District Attorney Doreen Klein, a prosecutor in the first trial, who, outside the presence of the jury, established the unavailability of Richard Jacobson, a witness from the first trial (Klein: Tr. 2058-69); Vincenza Garcia, a real estate broker, who testified that she helped Maples find an apartment, that the lease for that apartment was missing from her files, that the same lease had been introduced by Jones during his cross-examination of Maples and that the version Jones introduced had been altered (Garcia: Tr. 2139-74); and Detective Peter Liota, an expert witness on firearms, who testified about the condition of the guns found in Jones' office (Liota: Tr. 2666-2706). The State also read into evidence the prior testimony of Richard Jacobson, who testified as an expert witness at the first trial regarding the lack of a market for used shoes. (Jacobson: Tr. 2285-2329).

2. Summary of Jones' Evidence.

During his case, Jones offered evidence that he had permission to enter the apartment and possess Maples' belongings, that there was a market for used shoes, that the alleged forgeries were authentic, and that the firearms were not operable and were not his.

Jones called the following witnesses: Jesus Velasquez, a doorman in the building where Jones' office was located, who testified about how Jones and others entered Jones' building on July 15, 1992, shortly after Jones had been confronted with the videotape (Velasquez: Tr. 2375-88); Mr. Wasinski, a photographer, who testified he had obtained clothing used in photo shoots from Jones' office (Wasinski: Tr. 2398-2405); Klein, who testified about the alleged forgeries and the condition of a pair of panty hose allegedly owned by Maples that was found in Jones' office (Klein: Tr. 2404-37); Sergeant John Magee, who testified about Jones' arrest (Magee: Tr. 2438-54); Andrea Eastman, a talent agent, who testified about a lunch meeting among her, Maples, Jones and Donald Trump (Eastman: Tr. 2469-79); Domenic Pezzo, a security officer for the Trump Organization, who testified about the burglary, the confrontation of Jones, and the discovery of the items in Jones' office (Pezzo: Tr. 2480-2553); David Wexler, a concierge from Jones' building, who testified that Maples had visited Jones' building on a number of occasions (Wexler: Tr. 2556-60); John Kelligrew, one of Jones' lawyers in the first trial, who testified about the panty hose and its condition (Kelligrew: Tr. 2561-73); Gloria de Prado, who testified about the market for used shoes and the condition of panty hose found in Jones' office (de Prado: Tr. 2573-98); Christopher Williams, the owner of a Goodwill store, who testified about the market for used shoes (Williams: Tr. 2627-34); Yometie Semaroo, a worker at a Salvation Army store, who testified about the market for used shoes (Semaroo: Tr. 2635-41); R. Emmet Heaphy, a retired attorney and friend of Jones, who testified about Jones' arrest (Heaphy: Tr. 2643-55); Marion Cochran, a vice president for Goodwill Industries in New York, who testified about the market for used shoes (Cochran: Tr. 2663-65); Lynn Catherine Jones, Jones' wife, who testified about Jones' arrest and a subsequent search of Jones' home (Jones: Tr. 2729-63); Steven Fredericksen, a private investigator, who testified about his investigation of the case, items recovered from Jones' office, and ownership of the firearms (Fredericksen: Tr. 2794-2841); Thomas Fitzsimmons, who testified about Jones' relationship with Maples (Fitzsimmons: Tr. 2841-75); and Andrew Sulner, a handwriting expert, who offered his opinion that the alleged forgeries were authentic. (Sulner: Tr. 2906-88).

F. The Verdict and Sentencing

Justice Obus charged the jury on May 4, 1999. After deliberating until the afternoon of May 5, 1999, the jury found Jones guilty of the burglary and criminal possession of a weapon charges but acquitted him of criminal possession of stolen property. (Tr. 3268).

The parties appeared before Justice Obus on June 11, 1999 for sentencing. At this proceeding, Jones made a motion to set aside the verdict and to stay the sentence pending an application to the Appellate Division for bail pending appeal. Transcript, dated June 11, 1999 (reproduced in Exhibit Index, Vol. IV, Ex. D), at 3-7. The State asked for a sentence beyond the mandatory minimum sentence of 1-1/2 to 4-1/2 years. Id. at 7-11. Ramsey asked that the court impose the same sentence as was imposed following the first trial, or 1-1/2 to 4-1/2 years. Id. at 11. Jones continued to assert his innocence. Id. at 12-14. Ramsey also requested that Jones remain free on bail pending his appeal, id. at 15-16; the State opposed the request. Id. at 16-20. After a break, Justice Obus denied Jones' motion to set aside the verdict. Id. at 25. The judge proceeded to impose the minimum mandatory sentence of 1-1/2 to 4-1/2 years on the burglary count and time served on the possession of a weapon count. Id. at 26-30. Justice Obus granted Jones' request to stay the execution of the sentence so that he could make a bail application to the Appellate Division. Id. at 30. The judge directed Jones to report for execution of his sentence on June 15, 1999. Id. at 30-31. The sentence was executed on that date. See Transcript, dated June 15, 1999 (reproduced in Exhibit Index, Vol. IV, Ex. D), at 14.

Jones' application to the Appellate Division was denied without opinion. The Appellate Division later denied Jones' motion for reconsideration and the New York Court of Appeals denied Jones' motion for a direct appeal. On December 9, 1999, Jones filed a habeas petition in this Court challenging the Appellate Division's denial of bail. See Jones v. O'Keefe, 2000 WL 1290595, at *2 (S.D. N.Y. Sept. 12, 2000). The petition was denied on September 12, 2000, see id., and reconsideration was denied on December 7, 2000. See Jones v. O'Keefe, 2000 WL 1804153, at *4 (S.D.N.Y. Dec. 7, 2000). While his district court habeas petition was pending, Jones filed a petition for a writ of mandamus in the United States Court of Appeals for the Second Circuit, which was denied on May 4, 2000. See id. at *1.

G. Jones' Direct Appeal

The Appellate Division, First Department assigned Steven Feldman, Esq., to represent Jones in the direct appeal of his conviction. See Amended Petition Ex. 2. On April 26, 2000, Feldman filed an appellate brief on Jones' behalf only raising one point: a challenge to Justice Obus' decision to allow a juror to continue to serve after questions were raised about the juror's partiality (discussed in Section III.C below). See Brief for Defendant-Appellant, (undated) (reproduced in Amended Petition Ex. F), at 10-18. On April 28, 2000, Jones moved pro se for an order striking his lawyer's brief and directing his lawyer to file a new brief, or, in the alternative, for permission to file a pro se supplemental brief. See Motion to Strike Appellate Brief, or in Alternative to Compel Appellate Counsel to file Supplemental Brief; or to allow Pro Se Supplemental Brief; for an Expedited Hearing on Appeal as to Oral Argument, etal. [sic], (reproduced in Reply Declaration of Petitioner Charles Jones in 1) Opposition to Stay and 2) For Sanctions Precluding Respondent from Interposing any Further Answer, filed April 2, 2002, (Docket #13), Ex. M). The Appellate Division denied Jones' motion. See Order of the Appellate Division, First Department (undated) (reproduced in Amended Petition Ex. 2). Subsequently, Jones submitted a pro se supplemental brief and moved for reconsideration of his earlier motion. See Pro Se Supplemental Brief, dated June 16, 2000 ("Jones Pro Se App. Br."), (reproduced in Amended Petition Ex. D). Jones' pro se brief raised 14 additional points for consideration. See id. The First Department accepted Jones' pro se brief on July 27, 2000. See Order of the Appellate Division, First Department (undated) (reproduced in Amended Petition Ex. 2). After the State filed its appellate brief in January 2001, Jones filed a reply brief addressing arguments made both in the counseled and pro se briefs. See Reply Brief for Appellant (undated) (reproduced in Amended Petition Ex. E).

On March 21, 2001, the First Department affirmed Jones' conviction. People v. Jones, 281 A.D.2d 283 (1st Dep't 2001). As to the argument about the jury raised by Feldman, the court found Justice Obus "properly declined to discharge" the juror "[s]ince the court's searching inquiry . . . ultimately confirmed that the juror could remain impartial." Id. (citation omitted). The court further noted that Justice Obus' "inquiry also established that the jurors had not engaged in premature deliberations." Id. As for the additional arguments Jones raised in his pro se briefs, the court stated, "[w]e have considered and rejected defendant's pro se arguments." Id.

Jones then sought leave to appeal to the New York Court of Appeals raising all of the issues contained in his briefs to the Appellate Division. See Letter from Jones to Chief Judge Judith Kaye, dated April 9, 2001 (reproduced in Amended Petition Ex. C). On May 23, 2001, the Court of Appeals denied leave to appeal. People v. Jones, 96 N.Y.2d 831 (2001). Jones' application for reconsideration was also denied. People v. Jones, 96 N.Y.2d 903 (2001).

H. Jones' Section 440.10 Motions

On December 10, 1999 — while his direct appeal was pending — Jones moved pro se before Justice Obus to vacate his conviction pursuant to CPL § 440.10 or, in the alternative, for an evidentiary hearing. Jones advanced three arguments in support of the motion: i) newly discovered evidence created a probability that the verdict would have been favorable to him had it been received at trial; ii) "material evidence" presented at trial was false and known by the prosecution and Maples to be false; and iii) "improper and prejudicial" conduct not appearing on the record occurred during trial that, if it had appeared on the record, would have required reversal on direct appeal. See Declaration of Charles Jones in Support of Motion to Vacate Conviction and Order a New Trial Pursuant to CPL 440. 10(1)(c)(f)(g); An Order Vacating Conviction and Granting New Trial for Failure of People to Provide Brady Material: Injunctive Relief, dated December 10, 1999 ("First 440.10 Motion") (reproduced in Amended Petition Ex.G).

Justice Obus denied this motion in full on March 29, 2000. See Decision, dated March 29, 2000 ("First 440.10 Decision") (reproduced in Exhibit Index, Vol. V, Ex. J). As for both the newly discovered evidence and improper and prejudicial conduct grounds, Justice Obus found these claims to be procedurally barred and, in any event, without merit. Id. at 2-5. As for the false evidence claim, the court found that Jones "failed to establish with evidentiary facts that the People's witnesses testified falsely on material matters or that the People were aware of any alleged falsities." Id. at 5. On June 22, 2000, the Appellate Division denied Jones' request for leave to appeal, see Certificate Denying Leave, dated June 22, 2000 (reproduced in Amended Petition Ex. G), and on October 3, 2000, denied his request for re-argument and related relief. See People v. Jones, 2000 N.Y. App. Div. LEXIS 10294 (1st Dep't Oct. 3, 2000).

During the pendency of the first section 440.10 motion, on March 8, 2000, Jones filed a second pro se 440.10 motion to vacate the conviction, once again alleging that improper and prejudicial conduct occurred at trial and arguing ineffective assistance of counsel. See Affidavit of Charles Jones in Support of Motion to Set Aside and Vacate Conviction Pursuant to CPL 440.10(f) and for Ineffective Assistance of Counsel, dated March 8, 2000 ("Second 440.10 Motion") (reproduced in Amended Petition Ex. G), ¶¶ 1-37. These arguments were likewise rejected by Justice Obus who, on May 22, 2000, held that the claims were procedurally barred and, in any event, without merit. See Decision, dated May 22, 2000 ("Second 440.10 Decision") (reproduced in Exhibit Index, Vol. V, Ex. L), at 1-4. An application for leave to appeal was denied on October 3, 2000. See People v. Jones, 2000 N.Y. App. Div. LEXIS 10293 (1st Dep't Oct. 3, 2000).

I. Proceedings before this Court

On November 6, 2001, Jones filed the instant petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jones filed an amended petition on November 29, 2001. In his Amended Petition, Jones raised 16 grounds for relief. See Amended Declaration of Charles Jones in Support of Amended Petition for Writ of Habeas Corpus, dated November 26, 2001 ("Amended Declaration") (annexed to Amended Petition), ¶¶ 37(A)-(P). After a Report and Recommendation issued concluding that one of Jones' grounds for relief — ineffective assistance of appellate counsel — had not been exhausted in state court, see Report and Recommendation, issued April 26, 2002, at 5-7 (Docket #14), Jones withdrew this ground of his petition. See Memorandum Endorsement, filed May 3, 2002 (Docket #15).

Jones thus has 15 remaining claims, which he identifies as follows:

(1) the denial of counsel in the trial court violated his Sixth Amendment rights;

(2) the denial of a continuance to his assigned counsel resulted in a constructive denial of counsel, thereby violating his due process and Sixth Amendment rights;

(3) his trial was held before a partial jury causing a deprivation of his due process rights;

(4) the evidence presented was insufficient to prove a required element of the charges;

(5) he was denied his Sixth Amendment right under the Confrontation Clause due to the curtailment of his cross-examination of Maples;

(6) the prosecutor engaged in various forms of misconduct;

(7) the admission of evidence without establishing chain of custody violated his due process rights;

(8) the failure of the trial judge to give a missing witness instruction to the jury violated his due process rights;

(9) the trial court's interference with Jones' self-representation violated his Sixth Amendment rights under the Confrontation Clause and his due process rights;

(10) the trial court's improper instruction on the burglary charge deprived him of his right to a fair trial;

(11) he was deprived of his right to a speedy trial under the Sixth and Fourteenth Amendments;

(12) the prosecution violated his rights by failing to disclose exculpatory evidence;

(13) the trial court barred Jones from contact with a subpoenaed witness thereby violating his fair trial and due process rights;

(14) the denial of a post-conviction hearing on his claim of ineffective assistance of counsel violated his due process rights;

(15) any "other claims" that are presented by the record.

See Amended Declaration, ¶¶ 37(A)-(N), (P). Each claim is discussed in Section III below in the order presented, with the exception of his claims regarding the jury instructions (claims (8) and (10)), which are considered together. See Section III.H.

II. LAW GOVERNING HABEAS CORPUS REVIEW A. Review of Federal Claims

Only A federal court may issue a writ of habeas corpus to persons who are in state custody in violation of the Constitution, laws or treaties of the United States. 28 U.S.C. § 2254(a). Errors of state law are not subject to habeas review in federal court. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions"). Rather, a petitioner for habeas corpus must demonstrate that the conviction resulted from a state court misapplying federal law. See id. at 68.

B. Exhaustion

A party seeking relief from a state court conviction must have exhausted all available state court remedies before petitioning for federal habeas relief. See 28 U.S.C. § 2254(b); see also Ramirez v. Attorney Gen. of New York, 280 F.3d 87, 94 (2d Cir. 2001) ("Under 28 U.S.C. § 2254(b), applicants for habeas relief serving state sentences must first exhaust all state remedies.") (citing Grey v. Hoke, 933 F.2d 117, 119 (2d Cir. 1991)). To exhaust state remedies properly a petitioner must (1) preserve the claim for appeal as required by the applicable state law (2) present the federal claim to all appellate state courts where the right to appeal lies, and (3) inform the state courts of the factual and legal basis of the federal claim. See, e.g., O'Sullivan v. Boerckel, 526 U.S. 838, 843-47 (1999); Duncan v. Henry, 513 U.S. 364, 365-66 (1995) (per curiam); Ramirez, 280 F.3d at 94 (citing Picard v. Connor, 404 U.S. 270, 276-77 (1971)); Daye v. Attorney Gen. of New York, 696 F.2d 186, 190-92 (2d Cir. 1982) (en banc), cert. denied, 464 U.S. 1048 (1984). Federal claims are fairly presented by even a "minimal reference" to the provision of federal law that petitioner relies upon. See, e.g., Davis v. Strack, 270 F.3d 111, 122 (2d Cir. 2001); see also Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (per curiam) (reference to the Fourteenth Amendment in a caption heading of an appellate brief is sufficient for exhaustion purposes).

Except as noted below, the remaining claims in Jones' amended petition were raised in the Appellate Division and in Jones' application for leave to appeal to the Court of Appeals. In addition, each was raised in federal constitutional terms.

C. Standard of Review

Under 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214, a federal habeas court must defer to the state court determination of a petitioner's federal claims on the merits. A state court ruling is "on the merits" even where the ruling does not discuss the federal claim or any federal law in its opinion adjudicating the state law conviction. See Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir. 2001) ("Nothing in the phrase 'adjudicated on the merits' requires the state court to have explained its reasoning process."). All that is required to trigger the statutory standard of review is the issuance of "a decision finally resolving the parties' claims, with res judicata effect, that is based on the substance of the claim advanced, rather than on a procedural, or other, ground." Id. In this case, the Appellate Division gave a detailed discussion of Jones' claim regarding juror bias, see Jones, 281 A.D.2d at 283 — an adjudication plainly "on the merits."

With respect to Jones' remaining arguments, the Appellate Division stated only that they had been "considered and rejected." Id. This phrase, however, is sufficient to trigger the deferential AEDPA standard of review. See Burgess v. Bintz, 2002 WL 727011, at *2, *4 (S.D.N.Y. Apr. 24, 2002) (claims adjudicated on the merits where "considered and rejected" by the Appellate Division); see also Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) (statement that claim is "without merit" is sufficient to trigger AEDPA); Sellan, 261 F.3d at 312-14 (the word "denied" is sufficient). Where a state court "summarily reject[s]" a claim, the court's analysis focuses "on the ultimate decision . . . rather than on the court['s] reasoning." Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 123 S.Ct. 694 (2002).

When a state court has issued a ruling on the merits, habeas relief may not be granted unless the state court decision (1) 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). A state court decision is contrary to clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "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 different result. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of Supreme Court precedent if it identifies the correct governing legal principle "but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. As the Supreme Court recently stated, "[i]t is not enough that a federal habeas court, in its 'independent review of the legal question' is left with a firm conviction that the state court was erroneous." Lockyer v. Andrade, 123 S.Ct. 1166, 1175 (2003) (citations and some quotation marks omitted). Rather, the federal court must decide "whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 U.S. at 409.

With respect to factual issues, a State court's factual determination of an issue is "presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner has the burden of rebutting that presumption by "clear and convincing evidence." Id.

With these principles in mind, each of Jones' grounds for relief is discussed in turn. In some instances, the Court has noted that a claim fails even under de novo review, thus making it unnecessary to apply the AEDPA deferential standard of review. See, e.g., Cohen v. Senkowski, 290 F.3d 485, 488 (2d Cir. 2002) (denying habeas claim under de novo review rather than under AEDPA standard), cert. denied, 123 S.Ct. 879 (2003); see also Kruelski v. Connecticut Superior Court for Judicial Dist. of Danbury, 316 F.3d 103, 105-07 (2d Cir. 2003) (same).

III. DISCUSSION A. Denial of Counsel

Jones argues that he is entitled to habeas relief because Justice Berkman, and for a period Justice Obus, did not appoint him counsel during proceedings prior to his second trial. See Reply Brief at 38-51. The respondent states that this claim for relief should be denied because Jones was actually represented by counsel for his appeal to the Second Circuit during this time, see Resp. Mem. at 12; because Jones failed to establish his right to appointed counsel, see id. at 12-13; and because Jones was not prejudiced by the lack of counsel. See id. at 13-14.

As discussed below, Jones' claim fails for two reasons: (1) he has not met his burden of showing that the trial court's determination of Jones' ability to afford counsel 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)(2); and (2) if there was error, it was rendered harmless by the appointment of counsel long before trial.

1. Jones was Properly Denied Counsel

The Sixth Amendment grants the accused in a criminal matter the right to be represented by counsel at trial. However, the right to have counsel appointed applies only to those who are "too poor to hire a lawyer." See Gideon v. Wainwright, 372 U.S. 335, 344 (1963). Here, Justice Berkman took note of evidence suggesting that Jones owned valuable real estate in New York City and Connecticut. See Berkman Order at 3. Apparently, the State's claim that Jones was not indigent was based on the value of the house that Jones and his wife occupied and on the fact that Jones had posted significant amounts of bail. See id.; see also Affirmation in Response to the Defendant's Notice of Motions, dated March 19, 1998 (reproduced in Exhibit Index, Vol. V, Ex.F), ¶¶ 14-17, 19-21 (informing Justice Obus that Justice Berkman knew of Jones' previous retention of paid counsel, ownership of a house in Connecticut worth at least $500,000, and his immediate posting of $5,000 upon his arraignment for the second trial). Jones argues that Justice Berkman's finding that he was not indigent was objectively unreasonable because other courts, including the Second Circuit, had appointed counsel for him. See Reply Brief at 45-46.

This argument, however, is insufficient for Jones to meet his burden by "clear and convincing evidence" that the presumptively correct factual determination made by Justice Berkman, see 28 U.S.C. § 2254(e)(1), was an "unreasonable" one at the time it was made. 28 U.S.C. § 2254(d)(2). Case law has recognized that a reasonable — if incorrect — belief as to the financial status of a defendant will not result in an unconstitutional denial of counsel. See Douglas v. Hendricks, 236 F. Supp.2d 412, 429 (D.N.J. 2002) ("[d]efendant was not unconstitutionally deprived counsel for nine months after his indictment because the [public defender] made a reasonable investigation into his financial condition"); Rodriguez v. Lungren, 1997 WL 273859, at *4 (N.D.Cal. May 14, 1997) (no violation of Sixth Amendment where defendant failed to "provide evidence to convince the [state] court" that the petitioner was indigent).

Once Jones made a showing before Justice Obus that he was unable to afford counsel, counsel was appointed. Had Jones shown that he presented this evidence to Justice Berkman, the State court's determination might be deemed to have been an "unreasonable" one. In the absence of a record indicating that the State court's determination was unreasonable, however, Jones has not met his burden under 28 U.S.C. § 2254(e) and thus the factual determination as to Jones' then-indigence must be accepted by this Court.

2. Any Error in the Appointment of Counsel was Harmless

Even if Justice Berkman had erred in determining that Jones was not indigent, any such error was harmless.

a. Standard of review.

Jones argues that the denial of the right to counsel is not subject to harmless error analysis and is "per se reversible error of constitutional dimension requiring that any subsequent conviction be set aside . . ." Amended Declaration, ¶ 12; see also Reply Brief at 39 ("denial of a defendant's right to counsel at any critical stage of the proceedings is presumed to be prejudicial per se and requires reversal of a conviction.") (citation omitted). The cases Jones cites in support of this proposition, however, refer to the complete deprivation of counsel at trial — not at a preliminary or pre-trial stage of a case. See, e.g., Brecht v. Abrahamson, 507 U.S. 619, 629-30 (1993); Arizona v. Fulminante, 499 U.S. 279, 308 n. 8 (1991); Rose v. Clark, 478 U.S. 570, 577 (1986). The Supreme Court has held that for denial of counsel during pretrial or preliminary proceedings, "[t]he test to be applied is whether the denial of counsel . . . was harmless error." Coleman v. Alabama, 399 U.S. 1, 11 (1970) (citations omitted); see also Yarborough v. Keane, 101 F.3d 894, 897 (2d Cir. 1996) ("a less significant denial of the right to counsel (at a preliminary hearing) has been held to be subject to harmless error review") (citations omitted), cert. denied, 520 U.S. 1217 (1997). Circuit courts have thus routinely applied a harmless error analysis on habeas review of a claim regarding the denial of counsel during preliminary hearings of state criminal proceedings. See Hammonds v. Newsome, 816 F.2d 611, 613 (11th Cir. 1987) (per curiam); Takacs v. Engle, 768 F.2d 122, 124 (6th Cir. 1985); McKeldin v. Rose, 631 F.2d 458, 460-61 (6th Cir. 1980) (per curiam), cert. denied, 450 U.S. 969 (1981); Moses v. Helgemoe, 562 F.2d 62, 65 (1st Cir. 1976).

With respect to the particular formulation of the harmless error standard, Coleman states that the denial of counsel during preliminary proceedings should be evaluated under the standard of Chapman v. California, 386 U.S. 18 (1967), a case involving direct (not habeas) review of a state criminal conviction. See Coleman, 399 U.S. at 11. Under Chapman, an alleged error can be deemed harmless if it is "harmless beyond a reasonable doubt." 386 U.S. at 24. In Brecht v. Abrahamson, however, the Supreme Court announced that, on habeas review, harmless error analysis was to be guided by a standard more difficult for the habeas petitioner to meet: whether the error "'had [a] substantial and injurious effect or influence in determining the jury's verdict.'" Brecht, 507 U.S. at 637 (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). Under this standard, habeas petitioners may obtain relief only if they can establish that the alleged constitutional violation resulted in "actual prejudice." Id.

After the Supreme Court decided Brecht, Congress amended 28 U.S.C. § 2254 by the passage of the AEDPA. Since then, courts have sometimes struggled to determine what harmless error standard applies to a habeas petition. The Second Circuit has not decided whether Brecht or a mixed AEDPA/Chapman standard applies to harmless error review. See Ryan v. Miller, 303 F.3d 231, 254 (2d Cir. 2002) (citing cases). Under the latter standard, the question is "whether the state court's decision was 'contrary to, or involved an unreasonabl[e] application of' Chapman." Id. (quoting Noble v. Kelly, 246 F.3d 93, 101 n. 5 (2d Cir. 2001)).

While neither party has addressed this issue, it is unnecessary to reach it in this case because under either standard, Jones' claim fails.

b. The harmless error analysis.

The Sixth Amendment right to counsel "is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated." United States v. Chronic, 466 U.S. 648, 658 (1984) (citations omitted). In this case, the lack of appointed counsel for Jones during a seven month period had no effect on Jones' ability to receive a fair trial.

Justice Obus approved the appointment of counsel for Jones in May 1998. Jones' trial did not begin until April 1, 1999. Thus Ramsey served as counsel to Jones for almost a year prior to the start of his second trial. After his appointment, Ramsey could have made any pre-trial motions he thought necessary or called for under the circumstances. New York law gives a defendant great leeway to present motions prior to the actual start of trial. For example, CPL § 210.20(2) allows a motion for dismissal for lack of a speedy trial to be entertained at any point prior to trial. In addition, CPL § 255.20(3) allows a trial judge to entertain any pre-trial motion prior to sentence upon good cause being shown. Jones does not even argue that any applications made after he was counseled would have been treated more favorably had the application been made on some earlier date. Nor would the record support such an argument. In addition, to the extent the alleged prejudice arises "from the diminution of tactical alternatives available to subsequently appointed counsel," a court may find harmless error if the "possibility is found beyond a reasonable doubt [to be] merely speculative or hypothetical." Chin Kee v. Commonwealth of Mass., 407 F.2d 10, 14 (1st Cir.), cert. denied, 395 U.S. 982 (1969). Here, the record offers nothing to suggest that the delay caused any diminution in Jones' ability to make or succeed on motions following the date Ramsey was appointed to the case — let alone affected his ability to prevail at the trial itself.

In sum, to the extent Jones was incorrectly denied appointed counsel, the error was corrected by the later appointment of Ramsey and was rendered harmless by the length of time available to Ramsey to prepare a defense for Jones prior to the second trial.

B. Denial of Continuance/Constructive Denial of Counsel 1. Background

Jones' second trial had been scheduled for April 1, 1999 — apparently after efforts to fix a trial date had begun several months earlier. Transcript, dated March 26, 1999 ("March 26 Hearing") (reproduced in Exhibit Index, Vol. I, Ex. B), at 7, 11. On March 25, 1999, Jones wrote to Justice Obus informing him that at a pre-trial hearing the next day, Ramsey would enter a request that Jones be allowed to proceed pro se. See Letter to Justice Obus from Jones, dated March 25, 1999 ("Jones March 25 Letter") (reproduced in Exhibit Index Vol. V, Ex. H), at 1. In the letter, Jones complained that Ramsey was not properly preparing for trial because, among other claims, Ramsey had not obtained a court order to have a private investigator appointed and failed to renew a motion for dismissal under New York's speedy trial statute, CPL § 30.30. See id. at 2-3. Jones requested a continuance of an additional month so he could review transcripts from the first trial. See id. at 3.

On March 26, 1999, at a conference before Justice Obus, Jones orally made his request to proceed pro se. Jones asserted that Ramsey had not been able to put time into gathering information and obtaining an investigator. See March 26 Hearing at 4-5. In addition to seeking to represent himself pro se, Jones requested a continuance stating he believed a firm trial date had not been set and he did not "see any problem with delaying this thing." Id. at 5. Justice Obus denied the motion for a continuance, noting that one month previously he had set a firm trial date of April 1, see id. at 9; Transcript, dated March 1, 1999 (reproduced in Exhibit Index Vol. I, Ex. A), at 5; that "[w]itnesses have arranged to be here from other places"; that Ramsey had been appointed in May 1998 — nearly a year before; and that this was an adequate time to prepare a defense. See March 26 Hearing at 11. Justice Obus indicated that he did not want to relieve Ramsey as the attorney prior to trial, see id. at 12, but Jones responded, "Your Honor, I'm representing myself. If the Court has to instruct me as to pro se, give me a pro se instruction, then I request The Court do it now because I'm acting as my own attorney." Id. at 13. Jones renewed his request for a continuance indicating he needed time to prepare himself. See id. at 13-14. The judge denied the request again noting the case had "been adjourned for months and months and months . . . and [Jones had] the advantage of having a transcript of the prior trial." Id. at 16. Justice Obus gave Jones warnings about his decision to proceed pro se, see id. at 15-16, 21, 23, but did not relieve Ramsey at that point. See id. at 23.

On April 1, 1999, Jones reiterated that he intended to proceed pro se. (Tr. 7-8). Jones stated he had not fully prepared for the trial and again requested a continuance. (Tr. 7-8). Justice Obus denied the request for a continuance and questioned the wisdom of Jones' desire to proceed pro se. (Tr. 8-9). Jones responded that he had decided to represent himself but requested that Ramsey assist with voir dire and that the court appoint a jury consultant. (Tr. 9-10). Justice Obus agreed to have Ramsey conduct voir dire but denied Jones' request to have a jury consultant appointed. (Tr. 10). Justice Obus then fully allocuted Jones regarding his ability to represent himself. (Tr. 14-24).

2. Discussion

Jones argues that Justice Obus' denial of the request for a continuance served as a constructive denial of counsel because it forced him to proceed pro se. See Reply Brief at 51. Jones had previously contended that Ramsey was the one seeking the continuance and, because it was denied, Jones had to proceed pro se because he was the party more capable of preparing the case by the April 1 start date. Jones Pro Se App. Br. at 3-4. The respondent contends that Ramsey never stated he was unprepared to proceed to trial and only requested an adjournment of the trial date after Jones announced his intention to proceed pro se. See Resp. Mem. at 25. Jones also argues that Justice Obus' denial of a continuance had no basis and was done solely because "the trial court had its own schedule, upcoming trials and personal agenda." Reply Brief at 60.

As an initial matter, it is clear that Jones requested the adjournment because he wanted to proceed pro se. See Jones March 25 Letter at 1-3. Ramsey requested the case be adjourned only after Jones wrote to Justice Obus announcing his intention to proceed pro se. See March 26 Hearing at 3. Jones' stated reason for the decision to act as his own attorney was that he believed that Ramsey was not doing enough to prepare his case. See March 26 Hearing at 4 ("I have to take this to trial myself."); id. at 4-5 ("there is a problem . . . with certain information that has to be done. I can put the time into it. Mr. Ramsey hasn't been able to do that").

It appears that Jones' claims consist of two separate contentions: (1) that the denial of his request for a continuance was improper; and (2) that he was forced to proceed pro se because his attorney was giving him ineffective assistance of counsel. Each is addressed in turn.

a. Denial of the continuance. The Supreme Court has held that

[t]rial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances: only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to assistance of counsel.

Morris v. Slappy, 461 U.S. 1, 11-12 (1983) (quoting Ungar v. Safafite, 376 U.S. 575, 589 (1964)); see also Grotto v. Herbert, 316 F.3d 198, 206 (2d Cir. 2003) ("the trial judge has considerable discretion in matters of scheduling . . . and in seeing that the trial is conducted in a fair, efficient, and orderly manner") (citations omitted). Accordingly, the denial of a request for a continuance does not constitute grounds for relief absent the petitioner demonstrating both that the denial was unreasonable and arbitrary and that it caused the petitioner to suffer prejudice.

See Morris, 461 U.S. at 11-12; see also United States v. Arena, 180 F.3d 380, 397 (2d Cir. 1999) ("The denial of a defendant's request for a continuance will not be reversed absent a showing of both arbitrariness and of prejudice to the defendant.") (citations omitted), cert. denied, 531 U.S. 811 (2000). Jones' claim here fails because Justice Obus acted within the range of his discretion in declining to adjourn the trial.

Justice Obus noted that Jones' trial had been adjourned "months and months and months." March 26 Hearing at 16. He also noted that "[w]itnesses [had] arranged to attend the trial from other places. " Id. at 11. These are sound reasons for declining to adjourn the trial — particularly when there has been ample time for preparation. The Second Circuit has observed that "[s]cheduling is a matter that is of necessity committed to the sound discretion of the trial court." Drake v. Portuondo, ___ F.3d ___, 2003 WL 209460, at *5 (2d Cir. Jan. 31, 2003). On habeas review, this Court must presume Justice Obus' finding of repeated delays to be correct. See 28 U.S.C. § 2254(e)(1). Jones has made no showing by "clear and convincing evidence" that this finding was erroneous. It was plainly not an unreasonable application of federal constitutional law to refuse to adjourn the trial further.

b. Jones' decision to proceed pro se.

Jones also contends that he had been given ineffective assistance of counsel and this ineffectiveness "forced" him to proceed pro se. See Reply Brief at 51. The Court cannot accept the proposition, however, that a criminal defendant can argue that he was ever "forced" to proceed pro se after having been assigned counsel. Were Jones aware in March 1999 that his counsel was truly ineffective, he should have made that argument to Justice Obus at the time and sought the appointment of new (and effective) counsel. Jones, however, never sought the appointment of new counsel.

In any event, to demonstrate constitutional ineffective assistance of counsel, a petitioner must show (1) counsel's performance was so "deficient" as to fall "below an objective standard of reasonableness"; and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984); accord Sellan, 261 F.3d at 315. "In gauging deficiency, the court must be 'highly deferential,' must 'consider all the circumstances,' must make 'every effort . . . to eliminate the distorting effects of hindsight,' and must operate with a 'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 688-89); see also Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance") (citations and quotation marks omitted). The reviewing court must "evaluate the conduct from counsel's perspective at the time." Strickland, 466 U.S. at 689. Moreover, in the context of federal habeas review of a state criminal conviction, "it is the habeas applicant's burden to show that the state court applied Strickland to the facts of his case in an objectively unreasonable manner." Woodford v. Visciotti, 123 S.Ct. 357, 360 (2002); accord Bell v. Cone, 535 U.S. 685, ___, 122 S.Ct. 1843, 1852 (2002).

Jones argues that Ramsey was ineffective because he failed to renew the pretrial motions Jones made prior to Ramsey's appointment and because Ramsey failed to prepare adequately for trial. See Reply Brief at 51-53 (reprinting Jones March 25 Letter at 1-3). Each is discussed below.

i. CPL § 30.30 motion.

Jones notified Justice Obus that one of his reasons for wishing to proceed pro se was that Ramsey had failed to renew Jones' motion pursuant to CPL § 30.30 for dismissal on speedy trial grounds. See Jones March 25 Letter at 2-3. A habeas petitioner may show a denial of the Sixth Amendment right to effective assistance of counsel "if counsel failed to raise a significant and obvious state law claim." LanFranco v. Murray, 313 F.3d 112, 118 (2d Cir. 2002) (citations omitted). Justice Obus, however, explained in his April 1998 decision that Jones' section 30.30 claim was meritless, principally due to the fact that the statutory time did not begin to run until the Second Circuit affirmed the district court's order directing a new trial and because the time since then had largely been taken up by motion practice. See April 29 Order at 2-3. Jones has provided no explanation of why a renewed motion would have had any merit under state law. Obviously, the failure to make a meritless section 30.30 motion does not amount to ineffective assistance. See Whaley v. Rodriguez, 840 F.2d 1046, 1050 (2d Cir.) ("We seriously doubt that the facts known to [petitioner's] lawyer prior to trial would have prompted a lawyer of reasonable competence to make a section 30.30 motion. We need not decide that issue, however, since we conclude that the motion, if made, would have been denied."), cert. denied, 488 U.S. 944 (1988); see also Arena, 180 F.3d at 396 ("Failure to make a meritless argument does not amount to ineffective assistance.") (citation omitted). Here a lawyer of reasonable competence would be justified in not renewing a motion that had already been denied.

ii. Failure to prepare.

Jones also alleged that Ramsey failed to prepare properly for trial, raising complaints in only the most general terms. See Jones March 25 Letter at 1-3. Conclusory allegations that an attorney failed to prepare adequately for trial, however, will not support a claim of ineffective assistance. See, e.g., Slevin v. United States, 1999 WL 549010, at *5 (S.D.N.Y. July 28, 1999) ("Petitioner's conclusory allegations that counsel evinced 'a general lack of preparation' do not demonstrate that absent the alleged errors, the outcome of the trial would have been different. Petitioner has not elaborated on how counsel's alleged lack of general preparation prejudiced the outcome of his trial."), aff'd, 234 F.3d 1263 (2d Cir. 2000); Hartley v. Senkowski, 1992 WL 58766, at *2 (E.D.N.Y. Mar. 18, 1992) ("In light of [the] demanding [Strickland] standard, petitioner's vague and conclusory allegations that counsel did not prepare for trial . . . carry very little weight.").

The claim of ineffective assistance is also unavailing because Jones has not demonstrated prejudice. Ramsey was relieved prior to trial and thus Jones must prove that any failure on Ramsey's part prevented Jones from achieving an acquittal after Jones decided to proceed pro se. While Jones made complaints of Ramsey's alleged failure to interview witnesses and to obtain a court order for the appointment of a private investigator, see Jones March 25 Letter at 2, Jones gave no explanation to the trial court of what such interviews or a private investigator would have uncovered. Thus, he cannot show that the failure to conduct these activities either constituted deficient representation or that it resulted in prejudice to him. In other words, Jones has not shown a "reasonable probability" that if Ramsey had engaged in some particular preparation, "the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

Jones has requested an evidentiary hearing on this issue. See Reply Brief at 60-61. 28 U.S.C. § 2254(e)(2), however, permits a hearing in only limited situations — none of which apply here. No new rule of constitutional law is at issue, 28 U.S.C. § 2254(e)(2)(A)(i), and there is no excuse for Jones' failure to present the factual predicate for his claim to the trial court. 28 U.S.C. § 2254(e)(2)(A)(ii). Moreover, the facts underlying this claim would not be "sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found [Jones] guilty of the underlying offenses." 28 U.S.C. § 2254(e)(2)(B).

Because the Appellate Division's decision that Jones did not receive ineffective assistance of counsel was not an "objectively unreasonable" one, see Woodford, 123 S.Ct. at 360, habeas relief cannot be granted on this ground.

iii. The allocution of Jones as to his decision to proceed pro se.

While it is unclear if Jones makes any complaint regarding whether he was aware of the consequences of proceeding pro se, Justice Obus plainly gave Jones the proper warnings.

A criminal defendant enjoys the right, under the Sixth Amendment, to defend himself at trial without counsel. See Faretta v. California, 422 U.S. 806, 818-32 (1975). Because a decision to proceed without counsel causes a loss of "many of the traditional benefits associated with the right to counsel," a court must make a determination that the defendant decided to "'knowingly and intelligently' [waive] those relinquished benefits." Id. at 835 (quoting Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)) (citation omitted). "[T]here is no talismanic procedure to determine a valid waiver" of the right to counsel, but a judge should "engage the defendant in an on-the-record discussion to ensure that he fully understands the ramifications of [his] decision." Torres v. United States, 140 F.3d 392, 401 (2d Cir.) (citation omitted), cert. denied, 525 U.S. 1042 (1998).

The validity of the waiver of the right to counsel depends on "all the surrounding facts and circumstances, including the experience, background, and conduct of the accused." United States v. Hurtado, 47 F.3d 577, 583 (2d Cir.) (citation omitted), cert. denied, 516 U.S. 903 (1995). The considerations include "'whether the defendant understood that he had a choice between proceeding pro se and with assigned counsel, whether the defendant understood the advantages of having one trained in the law to represent him, and whether the defendant had the capacity to make an intelligent choice.'" Id. (quoting United States v. Calabro, 467 F.2d 973, 985 (2d Cir. 1972)).

In this case, Justice Obus repeatedly explained to Jones the possible dangers of proceeding pro se and elicited sufficient information about Jones to conclude that Jones' decision was knowing and voluntary. See March 26 Hearing at 15-16; Tr. 16-17, 14-23. In addition, after jury selection had finished, Justice Obus again warned Jones of the consequences of his decision and gave a brief description of the procedures to follow. (Tr. 270-79). In response, Jones repeatedly acknowledged his awareness of the dangers of proceeding pro se and his willingness to accept those risks. See, e.g., March 26 Hearing at 4 ("I know the adage about if you act as your own attorney, you have a fool for a client, but I have to risk that"); Tr. 16 ("I have considered all of it . . . I'm sure that this thing will proceed in a speedy and forthright fashion."); cf. Tr. 22 ("I vigorously am an advocate of my own position").

C. Jury Partiality

Jones claims that he was tried by a biased jury, thereby depriving him of his right to a fair trial. See Reply Brief at 16-38. The respondent argues that Jones' claim is baseless because one allegedly biased juror was removed and the other indicated his ability to remain impartial after extensive questioning. See Resp. Mem. at 31.

1. Background

During a recess on April 20, Justice Obus heard from a juror, Peter Crosby, who told a court officer that he wanted to talk to the judge. (Tr. 1783). Justice Obus asked Crosby about his concern. (Tr. 1783). Crosby stated:

I'm frustrated by the process. We are sitting here, there are a lot of questions, they don't seem relevant to the case. All of us have to work and carry on our other lives in addition to this time that is being wasted needlessly on many of these questions.

(Tr. 1783). Crosby noted that Jones was "com[ing] back to the same question three times" and that he "would be frustrated with anybody who gets up and asks the same questions three different times in three different convoluted manners." (Tr. 1786-87). Crosby stated that "at this point in time I'm certainly agitated, probably somewhat biased" but that he was sure that "[a]t the end of the case . . . I can be fair and put that aside." (Tr. 1783-84). When Jones questioned him about whether he was unable to be fair or impartial, Crosby stated "No. I think at the end of the day I would certainly be fair and impartial." (Tr. 1791). Crosby also mentioned that there had been "passing comments" among the jurors regarding their frustration. (Tr. 1788-89). After Crosby left the room, Jones stated he was concerned about Crosby's statement that there were discussions about frustration among the jurors. (Tr. 1791-92). Justice Obus did not remove Crosby at that point, but said he would question the entire jury about whether the events at trial would harm their ability to remain impartial. (Tr. 1792).

Justice Obus later asked the jurors one by one to come out and state if the pace of the trial was affecting their ability to serve. (Tr. 1803-05). The first member to come out was Dr. Andrew Black. When asked by the judge whether anything was preventing him from properly judging the case, Dr. Black (Juror No. 1) responded:

JUROR NO. 1: I do feel that the conduct of defense and counsel compromising objectivity —

THE COURT: And do you feel, obviously as I said before, that the tactics or the strategy in the way the defense is conducting or the fact that the defendant is representing himself which obviously has its own problems connected to it, do you feel that whatever frustration you have about that, you can put them aside ultimately and decide the case on [its] merits?

JUROR NO. 1: Let me just preface it by saying that, the decision of the defendant to represent himself is not one which I consider dishonorable — is not one which I consider dishonorable. It is not a decision that I feel that is dishonorable, it is not isolation and exclusively because he decided to defend himself that I have experienced frustration. I am trying with great efforts to objectively, you know, interpret the evidence as being presented, however, and perhaps this is a shortcoming of mine, because I have a relatively lack of patien[ce] with the way, with the manner and the tempo with which it's being introduced. I find that my ability to weigh the evidence impartially is compromised and is being taxed.

(Tr. 1805-07). Dr. Black also said that it was "certainly a possibility" that his ability to render a decision might be compromised. (Tr. 1811). After a question from Ramsey about possible discussions amongst the jurors, Dr. Black stated,

There has been discussion regarding elements of testimony which may or may not have been remiss. For example, the response to a question, the manner in which the question was offered, et cetera. I have tried not to express how disgruntl[ed] I am with the conduct; however, I have in all honesty discussed elements of testimony which I was not sure whether I heard correctly or interpreted correctly and in so doing it may be that my sentiments were transmitted without my intent.

(Tr. 1811-12). In response, Justice Obus instructed Dr. Black not to have any further discussions about the trial. (Tr. 1812).

After Dr. Black left, Ramsey requested a mistrial. (Tr. 1813). Justice Obus refused to rule until hearing from the other jurors. (Tr. 1813-14). None of the other jurors mentioned any potential problems or discussions, although a few stated there had been discussions about the pace of the trial thus far. (Tr. 1813-42). One juror did indicate that Crosby had expressed frustration. (Tr. 1832). After hearing all of the jurors, Justice Obus denied the request for a mistrial but allowed either party to seek to substitute Dr. Black. (Tr. 1842-43). The judge did tell Jones that his manner of cross-examination had been "very frustrating" and advised him to talk to Ramsey about strategies. (Tr. 1844-45).

The next day of trial Jones moved to excuse juror Crosby, who apparently did not show up that day. The State did not oppose and Justice Obus excused Crosby. (Tr. 1847). Jones made no motion or objection regarding Dr. Black at that time.

Later in the trial, Justice Obus questioned two jurors, including Dr. Black, about their ability to continue. One of the jurors, Seth Feldman, had an issue about a new job he was scheduled to start but said he would be able to continue. (Tr. 2767). The other juror, Dr. Black, was questioned about his ability to render an impartial verdict in light of the earlier statements he had made. Dr. Black stated that "I have every confidence I can make a decision based solely on the presentation of the evidence." (Tr. 2768). After some questioning by the judge and Ramsey, Dr. Black noted he had asked a question to another juror about some of the evidence in the case about "whether something had or had not taken place." (Tr. 2773). After Dr. Black left the room, Jones asked that Dr. Black be removed. (Tr. 2774). Justice Obus responded Because I was concerned at the time with the juror's statements about the

potential of mounting frustrations affecting his objectivity, that's the reason why I indicated I would talk to him again as we approached the end of the trial. As far as any question about improper conduct, while clearly he should not have asked one what was said, it's also clear to me it's not any sense of deliberations on the merits of the case and once it was made clear to him even that type of conversation should not go on, it hadn't.

I also note other than the one juror who's already been excused and even he didn't say there was any such conversation other than a general feeling of frustration, nobody else seemed to feel they had any other discussion of the case with any of the jurors according to the individual questioning we conducted of each of those jurors.

With regard to the standard of excusing a sworn juror, I do not believe this juror has engaged in misconduct of a substantial nature, certainly nothing that would affect his objectivity in any way.

As to whether he is grossly unqualified which is the other aspect of the standard at this point, had he told us that his frustration had mounted to the point where he was in the slightest unsure of his own objectivity, I would excuse him. He's told us unequivocally that has not happened and he has sat through this case and he is an intelligent person obviously, he may be particularly retrospective and that perhaps explains some of his statements when we first brought him out here in an effort to be as candid as possible with us in an effort to know what was going on. Based on what he said before and what he said today, I really have no doubt this juror believes and is accurate in his belief that he will decide this case based on the evidence and in an objective way, in consultation with the jurors in deliberation, but not before deliberation, so I'm not going to excuse him at this time.

(Tr. 2774-76). Justice Obus eventually named Dr. Black as the foreperson of the jury because he was seated in seat number one. (Tr. 3181).

The Appellate Division's denial of Jones' appeal focused primarily on Jones' contention regarding alleged juror bias. The Appellate Division found that the trial court properly declined to discharge a juror who had expressed exasperation with the pace of the trial, due in large part to defendant's pro se representation, and had initially expressed doubts about his ability to remain impartial. Since the court's searching inquiry on two different occasions during the trial ultimately confirmed that the juror could remain impartial, discharge was not warranted . . . The court's inquiry also established that the jurors had not engaged in premature deliberations.

People v. Jones, 281 A.D.2d at 283 (citation omitted).

2. Discussion

In this petition, Jones argues that Dr. Black was "grossly unqualified" because he was "plainly angry, biased and obviously possessed a 'state of mind' that prevented [him] from rendering an impartial verdict." Reply Brief at 18 (emphasis omitted). The basis for this allegation is Dr. Black's comments about Jones' questioning of Maples and Calamari. Id. Jones also complains that Justice Obus failed to question Dr. Black adequately to ascertain whether he could render an impartial verdict. Id. at 21-22, 24-27, 30-32. Finally, Jones alleges that Dr. Black engaged in premature deliberations. Id. at 23-24. Jones claims these errors violated his right to be tried before an impartial jury.

The Second Circuit has noted, "[o]n § 2254 review, the state trial court is entitled to a presumption of correctness with respect to its conclusion that the jury was impartial." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 813 (2d Cir. 2000) (citation omitted); see also Knapp v. Leonardo, 46 F.3d 170, 176 (2d Cir.) ("the Supreme Court has made it clear that 'the trial court's findings of impartiality [may] be overturned only for manifest error'") (quoting Patton v. Yount, 467 U.S. 1025, 1031 (1984), in turn quoting Irvin v. Dowd, 366 U.S. 717, 723 (1961)), cert. denied, 515 U.S. 1136 (1995).

The trial court's findings of impartiality here are amply supported by the record. Indeed, the argument that the jury was biased is far weaker than existed in Wheel v. Robinson, 34 F.3d 60 (2d Cir. 1994), cert. denied, 514 U.S. 1066 (1995), in which the Second Circuit upheld the trial court's refusal to excuse a number of jurors. In Wheel, one juror allegedly remarked that the juror did not care about the defendant, see id. at 63; another "resented 'the people in the courtroom' for wasting time," id.; and a bus driver who took the jurors to court allegedly told them "they should 'just find [the defendant] guilty.'" Id. at 64. In response to each incident the trial judge interviewed the individual jurors and received assurances from all of the jurors that they were impartial and had not prejudged the case. See id. at 63-64. The Second Circuit found that the trial judge's actions "clearly satisfied the requirements of due process and § 2254(d). The trial court's findings on jury bias are therefore entitled to the § 2254(d) presumption of correctness." Id. at 65.

Here, Justice Obus carefully questioned Dr. Black twice and allowed Jones and Ramsey to do the same. (Tr. 1805-12; 2768-73). In addition, Justice Obus questioned the entire jury pool and told each juror to remain impartial and not to prejudge the case. Just as in Wheel, "[e]ach incident of asserted jury bias or misconduct was the subject of careful inquiry, and resulted in a determination that the impartiality of the jury had not been compromised. '[T]he determination is essentially one of credibility, . . . [and] the trial court's resolution of such questions is entitled . . . [to] 'special deference.''" 34 F.3d at 65 (quoting Patton, 467 U.S. at 1038, in turn quoting Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 500 (1984)); accord Summers v. Senkowski, 2001 WL 204205, at *4 (S.D.N. Y. Feb. 28, 2001). Nor does Dr. Black's initial expression of doubt undermine his later assurance of impartiality. In Lyon v. Senkowski, 109 F. Supp.2d 125 (W.D.N.Y. 2000), the court noted that a "juror's initial expression of doubt, rather than suggesting bias, reflects that he made a conscientious effort to assess the effect of the outburst on his objectivity." Id. at 138. As is true in this case, "[t]he trial judge's finding that each juror could render an unbiased verdict was upheld on direct appeal and there is no compelling contrary evidence. This Court must defer to that finding." Id.

In sum, given Justice Obus' inquiry of the jury and their assurances of impartiality, Jones has not met his burden of showing by clear and convincing evidence that the trial court unreasonably concluded that the jury was impartial.

Jones has also argued that Maples was speaking to jurors and the trial court failed to inquire whether this biased the jury. See Reply Brief at 36-37. However, as Jones admits, this claim is unexhausted because it was not presented to the Appellate Division. See id. at 37. Jones claims that he was unable to raise this ground because he lacked a proper transcript. See id. But Jones was represented by appellate counsel at this time and has withdrawn any claim that his counsel was ineffective. Accordingly, the lack of a transcript could not excuse his failure to exhaust. In any event, it is noteworthy that Justice Obus in fact inquired of Maples about the incident and was apparently satisfied by Maples' testimony that she had spoken to a court officer, not any of the jurors. (Tr. 652). Certainly, this single incident would not be sufficient to doubt that Jones received a trial before an impartial jury.

D. Insufficiency of the Evidence

Jones claims that the evidence was insufficient to support his conviction on the burglary charge. See Reply Brief at 63. Jones' main contention is that because the State did not call as witnesses two individuals who allegedly might have given Jones permission to enter Maples' apartment, the evidence was insufficient to support the guilty verdict for burglary in the second degree. See Reply Brief at 63-68.

On habeas review of a claim of insufficiency of the evidence, the question is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original) (citing Johnson v. Louisiana, 406 U.S. 356, 362 (1972)). A petitioner challenging the sufficiency of the evidence on habeas review "bears a very heavy burden," Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (citation and internal quotation marks omitted), "because the government receives the benefit of having all permissible inferences drawn in its favor." Dixon v. Miller, 293 F.3d 74, 81 (2d Cir.) (citation omitted), cert. denied, 123 S.Ct. 426 (2002). The jury's verdict "'may be based entirely on circumstantial evidence,'" and the prosecution's evidence "need not refute every possible hypothesis supporting defendant's innocence." Id. (quoting United States v. Martinez, 54 F.3d 1040, 1042 (2d Cir. 1995)) (citation omitted).

"When considering the sufficiency of the evidence of a state conviction, '[a] federal court must look to state law to determine the elements of the crime.'" Ponnapula v. Spitzer, 297 F.3d 172, 179 (2d Cir. 2002) (quoting Quartararo v. Hanslmaier, 186 F.3d 91, 97 (2d Cir. 1999)). Jones was charged with second degree burglary under N.Y. Penal L. § 140.25(2), which states, "[a] person is guilty of burglary in the second degree when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein, and when . . . [t]he building is a dwelling." A separate statute provides that a person "enters or remains unlawfully" in or upon a premises "when the person is not licensed or privileged to do so." N.Y. Penal L. § 140.00(5). Jones' only real argument is that the State failed to prove that he did not have a license or privilege to enter or remain in Maples' apartment.

At trial, Maples testified repeatedly that Jones did not have permission to enter her apartment. (Maples: Tr. 334-35, 360, 371, 389, 394-95, 553-54, 944-47, 981-82, 1064-65, 1076, 1082). While Jones had keys to Maples' apartment, witnesses testified that he had not been given those keys and did not have permission to enter the apartment. For example, Ann Ogletree testified that Maples had never instructed her to give Jones a key so he could enter the apartment. (Ogletree: Tr. 1210). Janie Elder, a friend of Maples, testified that Jones stole keys to Maples' apartment from her (Elder: Tr. 1444-47), and that these keys were later recovered at Jones' office. (Elder: Tr. 1462-65). This evidence is more than sufficient for a rational juror to have found that Jones lacked a license or privilege to be in Maples' apartment.

Jones argues that the State did not prove he lacked permission to enter the apartment because it never called Kim Knapp or Donald Trump as witnesses. See Reply Brief at 63-68. At the time of the robbery, Knapp was Maples' roommate (Maples: Tr. 1061), while Trump was Maples' husband and allegedly owned the apartment and the entire building. See Reply Brief at 63. Jones alleges that these two individuals, by virtue of their relationship to Maples, had authority to give him permission to enter the apartment and without their testimony his unlawful presence could not be proven beyond a reasonable doubt. Id. at 63-65. Under New York law, however, "lack of license or privilege to enter may be established by circumstantial evidence, and the testimony of one or all of those who could consent to entry is not in all cases indispensable. " People v. Quinones, 173 A.D.2d 395, 396 (1st Dep't) (citing People v. Wright, 68 A.D.2d 930 (2d Dep't 1979)), leave to appeal denied, 78 N.Y.2d 972 (1991); see also People v. Battle, 202 A.D.2d 1045 (4th Dep't) ("there is no requirement that the owner of the burglarized premises testify that he did not give defendant permission to enter"), leave to appeal denied, 83 N.Y.2d 908 (1994). In addition, the fact that the evidence showed that Jones had to steal keys in order to enter the apartment by itself provides circumstantial evidence that he had no authority from anyone to enter the apartment.

For these reasons, Jones' claim of insufficiency of the evidence should be rejected.

E. Limitation on Cross-Examination

Jones claims that he was denied his rights under the Confrontation Clause of the Sixth Amendment during his cross-examination of Marla Maples for three reasons: the trial court violated his rights by issuing a "beat the clock edict" that unfairly limited his cross-examination of Maples, see Reply Brief at 82-84; the trial court precluded Jones from asking Maples about "non-disclosure agreements" that allegedly would have shown bias on her part, see id. at 84-87; and his rights were violated because the trial court denied his motion to recall Maples after she finished her original testimony. See id. at 87-88.

1. Applicable Law

The Supreme Court has stated that

[t]he Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him . . . [T]he main and essential purpose of confrontation is to secure for the opponent the opportunity of cross-examination. . . . Of particular relevance here, [w]e have recognized that the exposure of a witness' motivation in testifying is a proper and important function of the constitutionally-protected right of cross-examination.

Delaware v. Van Arsdall, 475 U.S. 673, 678-79 (1986) (citations, emphasis and internal quotation marks omitted). A violation of the Confrontation Clause occurs when a defendant is "prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby 'to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.'" Id. at 680 (quoting Davis v. Alaska, 415 U.S. 308, 318 (1974)).

The right to cross-examination under the Confrontation Clause is not absolute, however. "[T]rial judges retain wide latitude . . . to impose reasonable limits on such cross-examination based on concerns about . . . harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Id. at 679. Nonetheless, a restriction on the right to confront an adverse witness may be unconstitutional if it is "'arbitrary or disproportionate to the purposes [the restriction is] designed to serve.'" Michigan v. Lucas, 500 U.S. 145, 151 (1991) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)).

2. The Time Limitation

Jones complains that Justice Obus improperly gave him a deadline to conclude his cross-examination of Maples. See Reply Brief at 82-83. Maples testified for one day on direct — the afternoon of April 8, 1999 and the morning of April 12, 1999. Jones began his cross-examination in the afternoon of April 12, 1999. On the next day, Tuesday, April 13, Jones' questions appeared to go far beyond anything necessary to present his defense to the charges against him. For example, he had asked Maples questions about whether she had left clothing in the apartments of numerous men including Dodi Fayed (the late companion of Princess Diana) (Maples: Tr. 656); Theodore Forstmann (a well known financier) (Maples: Tr. 656); and Adnan Khashoggi (an international arms dealer) (Maples: Tr. 656-57). Jones also asked whether Maples had engaged in an extra-marital relationship with a Jerry Argovit (Maples: Tr. 807, 810-11) and questioned Maples about Jones' own alleged friendship with former President Bush. (Maples: Tr. 729-32). Jones also asked many seemingly irrelevant questions about the history of Maples' relationship with Jones. (Maples: Tr. 669-77). Much of this questioning dealt with issues that had no discernable relevance to the charges against Jones, such as whether Maples had told Diane Sawyer that Donald Trump did not support her (Maples: Tr. 724), whether Maples had appeared on the soap opera Dallas (Maples: Tr. 780-81), and about Jones' involvement in meetings between Maples and persons in the entertainment world. (Maples: Tr. 794-99). After Jones requested a break, Justice Obus stated to Jones:

You've got to focus this down. We are not going to go through everything that happened between you and Miss Maples over the course of your relationship. What matters ultimately is the nature of the relationship as it approaches the time of this incident and whatever that relationship was, whether or not you had authority to be there at the time in question, whether or not you had authority to possess the items in question and as I said, I understand that each of these questions you asked may arguably have something to do with some aspect of that, but there's got to be a limit to it.

(Tr. 815-16).

After the break, Jones' cross-examination included questions about Maples' appearance at a wrestling event (Maples: Tr. 835-37); clothing Maples wore in photographic layouts in various magazines (Maples: Tr. 845-50); certain shoes Maples may have worn at different times (Maples: Tr. 851-58); a time when Maples had come to Jones' home in Connecticut wearing tennis shoes and whether his wife had washed those shoes (Maples: Tr. 859-62); whether Maples had borrowed Jones' daughter's bike (Maples: Tr. 860); and her use of aliases when staying at hotels (Maples: Tr. 863-68).

Justice Obus had previously told the parties that no testimony would be taken the next day, Wednesday, as it was a calendar day. At the end of the proceedings that day (Tuesday, April 13, 1999), there was the following colloquy:

THE COURT: Mr. Jones, can you give me some idea of how much longer you expect your cross-examination to be?

MR. JONES: I think I should be finished tomorrow, your Honor. I mean Thursday.

(Tr. 873). The judge concurred that the cross-examination was "definitely going to be finished on Thursday," adding that "[t]he only question is, what time?" (Tr. 873). After some discussion about various topics that Jones had already discussed, the Court stated:

I just need you to do this in a methodical way and you have the exhibits ready that you need. There is no way this examination is going to continue beyond one more day with this witness and while, as I said, I can't pick any particular question of yours and say that question doesn't have some bearing on some subject here, there is a limit overall to this and if I can't do it question by question, then I'm doing it by time and I'm telling you this case as far as the witness is concerned, is going to be done by the end of the day on Thursday.

(Tr. 878). The judge thereafter reiterated his intention that examination of Maples finish on Thursday, including any re-direct. (Tr. 879).

The questioning continued on Thursday, April 15. During a morning break, Justice Obus reminded Jones that his cross-examination would finish that afternoon (Tr. 955-56), a reminder that was repeated at the lunch break. (Tr. 1020). Jones' examination included questions about an earlier apartment of Maples, repairs he allegedly made, and whether Maples had left water stains in the apartment. (Maples: Tr. 959-64). After Maples again denied having given Jones permission to enter her apartment (Maples: Tr. 978-79), he asked a series of questions relating to shoes worn by Maples, nude photographs, events she attended, other business dealings they allegedly had, and various other topics. (Maples: Tr. 981-1018).

At one point during the afternoon session, Jones asked questions about whether Maples and the singer Michael Bolton had registered together at a hotel and whether she received flowers from Donald Trump at the hotel. (Maples: Tr. 1071-72). At the end of the afternoon session, Jones voiced no objection to the amount of time Justice Obus had allowed him. In fact, Jones previously recognized the leeway given him when he stated, "I realize I'm not a pro — I appreciate your indulgence." (Tr. 951). By the time he finished, Jones had engaged in two and a half days of cross-examination.

As noted above, a trial judge has "wide latitude . . . to impose reasonable limits" on cross-examination. Van Arsdall, 475 U.S. at 679. While a court "'must allow some cross-examination of a witness to show bias,'" a trial judge retains latitude "to set limits on the cross-examination of a prosecution witness for potential bias." Henry v. Speckard, 22 F.3d 1209, 1214 (2d Cir.) (quoting United States v. Abel, 469 U.S. 45, 50 (1984)) (citations omitted), cert. denied, 513 U.S. 1029 (1994). Justice Obus was acting well within these limits when he set a deadline based on Jones' own estimate of how much longer he needed for the cross-examination of Maples. Jones was given over two days in which to elicit evidence from Maples. He asked numerous questions of Maples that were of only marginal relevance. The time period allotted by Justice Obus was sufficient to question Maples regarding the elements of the case against Jones and to give the jury an opportunity to evaluate her testimony. See United States v. Roldan-Zapata, 916 F.2d 795, 806 (2d Cir. 1990) ("Cross-examination is not improperly curtailed if the jury is in possession of facts sufficient to make a 'discriminating appraisal' of the particular witness's credibility.") (quoting United States v. Singh, 628 F.2d 758, 762 (2d Cir. 1980)), cert. denied, 499 U.S. 940 (1991).

3. The Non-Disclosure Agreements

Jones claims that Justice Obus refused to allow him to question Maples about a number of "nondisclosure agreements." See Reply Brief at 84-85. The reference apparently is to an agreement that Maples allegedly wanted from Jones under which he would agree not to disclose information or documents about Maples (including nude photographs and photographs he might have taken of her apartment). Jones' contention was that Maples fabricated the charges against him as retribution for his refusal to sign such an agreement.

In fact, the trial court, over the State's objection, allowed Jones to examine Maples about these agreements. (Tr. 1026-29). The only limitation placed by the trial court was that Jones could not ask about agreements that post-dated his arrest because any such agreement could not have had any bearing on Maples' initial cooperation with the police in pressing charges. (Tr.1026-27). Such a ruling was within the "reasonable limits" that a trial court may impose on cross-examination. Ultimately, Jones asked Maples a number of questions about these alleged agreements and whether she had brought the charges against him because of his refusal to sign the agreements. (Maples: Tr. 1030-35). For example, the following questioning occurred:

Q Isn't the real purpose for you, with respect to this case, is to have me sign a non-disclosure to give back the photographs or not sell the photographs or not write a book, is that your motivation?

MR. SARACCO: Objection.

THE COURT: Sustained as to the form of the question. Mr. Jones wants to ask whether or not you initially brought this complaint against him so that you could get a non-disclosure agreement.

THE WITNESS: No, absolutely not.

Q And isn't it a fact that various times you told me directly that if I didn't sign a non-disclosure, or if I could not reproduce the photographs that, in fact, you would proceed with this matter?

A No, I don't recall saying that.

* * *

Q Did you call my office on or about August of 1993 and demand that I sign an agreement or that you were going to meet with A.D.A. Doreen Klein?

A I don't recall that.

(Maples: Tr. 1033-35). After that, Jones moved on to a different topic. The only objection Jones raised to a purported limitation on his questions relating to these agreements came a day later, after Maples left the stand. (Tr. 1124).

Because Justice Obus properly limited the scope of cross-examination to the matters relevant to show Maples' motive to fabricate the charges against Jones, there was no violation of the Confrontation Clause.

4. The Motion to Recall Maples

Jones also complains of Justice Obus' refusal to allow Jones to recall Maples as a witness or allow him to cross-examine her fully once the State recalled her to the stand. See Reply Brief at 87-88. The day after completing his cross-examination, Jones objected to the length he had been allowed to inquire of Maples and asked for her to be recalled. (Tr. 1124). The next day Justice Obus ruled on Jones' contention stating

As far as the application to recall Marla Maples for further cross-examination . . . she was cross-examined at length about all of the relevant subjects. I gave the defendant notice because it is cross-examination, and it was so cumbersome, he had to finish by the end of the day, yesterday he had notice in plenty of time to adjust his questioning accordingly. There is no basis to permit her to be recalled. With regard to the sidebar about the non-disclosure agreement, we had a brief discussion with the People, the defendant, and the legal advisor at sidebar, not on the record, in which I simply advised Mr. Jones that he was not going to be permitted to get into discussions of plea negotiations in that other case, in this case, but I told him anything he thought was relevant to Ms. Maples bringing these complaints in the first place, he was welcome to do so. No mention was made by Mr. Jones at that time to anything about a prior non-disclosure agreement that might have related to why she made the original complain[t]. He was not precluded from asking any such questions of fact, other than to give a general guideline of what I thought was relevant, no particular ruling was made, no question was held to be improper and the defendant was simply told to finish his cross-examination, and he did. I will not permit him to recall Ms. Maples for further cross-examination.

(Tr. 1217-19). During the jury deliberations, Jones made a motion to dismiss claiming that Maples should have been recalled as a witness. (Tr. 3190). Justice Obus denied the motion finding it meritless. (Tr. 3202-03).

"The Confrontation Clause requires the trial court to give the defendant the opportunity to confront adverse witnesses . . . It does not require the court to reopen cross-examination so that [the] defense . . . can pursue a line of questioning that was available when the witness testified initially." Stephens v. Hall, 294 F.3d 210, 227 (1st Cir. 2002) (citations omitted), cert. denied, 123 S.Ct. 907 (2003); see also United States ex rel. King v. Schubin, 522 F.2d 527, 529 (2d Cir.) (per curiam) (the denial of defendant's request to recall witnesses did not merit habeas relief where the "proposed questions dealt almost exclusively with irrelevant matters or those covered during the earlier cross-examination."), cert. denied, 423 U.S. 990 (1975). Jones was given great latitude, and used it fully, to cross-examine Maples in the first instance.

While Jones contends that Justice Obus "precluded any reference to the specific agreements during Maples['] renewed cross-examination," Reply Brief at 84, Jones had already been given the opportunity to question Maples about these agreements during her initial cross-examination. The Confrontation Clause guarantees only "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." Delaware v Fensterer, 474 U.S. 15, 20 (1985) (per curiam) (emphasis in original) (citing Ohio v. Roberts, 448 U.S. 56, 73 n. 12 (1980)). Jones had this opportunity and thus is not entitled to habeas relief on this ground.

As for Jones' claims about Maples' recall, Justice Obus allowed Maples to be recalled only to clarify her testimony about an allegedly forged lease offered by Jones. (Maples: Tr. 1992-99). Jones was properly limited to cross-examination only within the scope of the limited subject for which she had been recalled.

F. Prosecutorial Misconduct

Jones argues the prosecution engaged in various instances of misconduct, all of which relate to references made in the summation. He alleges that the prosecutor improperly commented on: i) his failure to testify; ii) certain exhibits claimed to be forged; iii) matters not in evidence that purportedly "denigrate[d] a key defense witness"; iv) Maples' lack of motive to commit perjury; and v) various "uncharged crimes." See Reply Brief at 93-106. He also refers to other "Inflammatory Remarks" and "Impermissibl[e] Comment[s]" that he argues warrant habeas relief. See id. at 95-96, 104-06.

1. Applicable Law

The scope of review for allegations of prosecutorial misconduct in the habeas context is "quite limited." Tankleff v. Senkowski, 135 F.3d 235, 252 (2d Cir. 1998); Porter v. Kelly, 2000 WL 1804545, at *4 (E.D.N.Y. Dec. 5, 2000). Relief is available only where the court "find[s] that the prosecutor's comments constituted more than mere trial error, and were instead so egregious as to violate the defendant's due process rights." Tankleff, 135 F.3d at 252 (citing Donnelly v. DeChristoforo, 416 U.S. 637, 647-48 (1974)); see also Floyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1990) ("The appropriate standard of review for a claim of prosecutorial misconduct on a writ of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory power.") (internal quotation marks and citations omitted). Thus, "[e]ven where a prosecutor's remarks are improper, 'constitutional error occurs only when the prosecutorial remarks were so prejudicial that they rendered the trial in question fundamentally unfair.'" Washington v. Walker, 1994 WL 391947, at *3 (S.D.N.Y. July 28, 1994) (quoting Floyd, 907 F.2d at 355); accord Gonzalez v. Sullivan, 934 F.2d 419, 424 (2d Cir. 1991) ("A criminal conviction 'is not to be lightly overturned on the basis of a prosecutor's comments standing alone' in an otherwise fair proceeding.") (quoting United States v. Young, 470 U.S. 1, 11 (1985)).

In addition, to succeed on a claim of prosecutorial misconduct with respect to comments during summation, a habeas petitioner must show "that he suffered actual prejudice because the . . . [comments] had a substantial and injurious effect or influence in determining the jury's verdict." Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994), cert. denied, 516 U.S. 1152 (1996); accord Tankleff, 135 F.3d at 252. In the Second Circuit, three factors are to be considered when determining whether this standard has been met: (1) the severity of the misconduct; (2) the nature of curative measures taken to remedy the prejudice, if any; and (3) the certainty of the conviction absent the improper conduct. See Bentley, 41 F.3d at 824; Floyd, 907 F.2d at 355. In evaluating whether comments during summation deprived the defendant of a fundamentally unfair trial, it is important to place the "remarks in context." See Darden v. Wainwright, 477 U.S. 168, 179 (1986); accord Greer v. Miller, 483 U.S. 756, 766 (1987); Young, 470 U.S. at 11; Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir.), cert. denied, 502 U.S. 852 (1991).

2. Discussion a. Failure to testify.

Jones maintains the State "intended and was suggesting that the jury should draw a negative and unfavorable inference from the failure of the defendant to testify," Reply Brief at 97, when the prosecutor observed:

Nothing [Jones] says by way of questions, by way of an opening statement, and by way of his summation constitutes evidence. The evidence is in the record of the sworn testimony. He can't get up and give a summation if he can't be cross-examined, not under oath, and have you accept that as evidence.

(Tr. 3088-89).

These comments, however, were not so "egregious" as to deny Jones a fair trial. To the contrary, they were appropriate to the situation. During his summation, Jones had described in his own words his relationship with Maples (see, e.g., Tr. 3013, 3046-48; see also Tr. 3044 ("If you knew my relationship with Marla Maples, I had been in the apartment dozens of times")), and was admonished by the court for testifying to facts not in evidence. (See, e.g., Tr. 3040-41, 3048; see also Tr. 3061-62 (alleging that he had been given a key and permission to enter her apartment days before he was caught on videotape)). The prosecutor thus properly highlighted for the jury that the defense summation was not the equivalent of testimony subject to cross-examination.

In any event, Jones objected to this statement and the court sustained the objection. (Tr. 3089). The judge also gave the following instruction on the spot:

I told you before, I'll repeat it again, the evidence comes from the witness stand, physical exhibits, any stipulations. Nothing said by counsel or the defendant in the context of opening, summations, legal arguments, questions, none of that is evidence.

(Tr. 3089). In addition to sustaining the objection, the trial court specifically instructed the jury following summations "that the fact that the defendant did not testify is not a factor from which any inference unfavorable to the defendant may be drawn." (Tr. 3161). Thus any adverse impression this single comment may have left with the jury was sufficiently cured by this instruction.

b. Exhibits claimed to be forged.

The issue of the purported forgeries centered primarily on two notes allegedly written and signed by Maples in which she gave Jones permission to enter her apartment on specific occasions in order to pick up and drop off certain items (Hynes: Tr. 1322-25, 1331-32; see also Tr. 1307-13), as well as a copy of the lease agreement for Maples' previous apartment in which Jones was purportedly listed as her "admitting" agent. (Maples: 967-70, 1196-2008; see also Tr. 1126-32). The apparent significance of these items for Jones' defense was that they demonstrated he had consent to enter her apartment as part of their ongoing business relationship and thus negated the lack of license and privilege element of the burglary charge. (Tr. 3062-66).

At trial, Kevin Hynes — one of the prosecutors assigned to prosecute Jones during the first trial in 1994 — testified for the State. (Hynes: Tr. 1319-57). The prosecution asked him to identify the two notes, People's Exhibits 26 and 27. (Hynes: Tr. 1321-22). Hynes and the first prosecution team believed the notes — which Jones had produced during the 1994 trial — to be forgeries and had the notes analyzed to confirm their suspicions. (Hynes: Tr. 1325-28, 1332, 1345, 1349-50; Klein: Tr. 2430-31). The prosecution in the second trial was permitted to introduce Hynes' testimony on this score and the exhibits themselves in order to demonstrate Jones' consciousness of guilt. (Tr. 1307-13). Maples testified unequivocally that she had not written and signed the notes. (Maples: Tr. 546-48, 1193-96).

The expert who analyzed the notes for the first prosecution team, Gus Lesnevich, also testified at the second trial. (Lesnevich: Tr. 1849-1921). He testified that after comparing People's Exhibits 26 and 27 with exemplars known to have been written by Maples he concluded they were not written by the same person. (Lesnevich: Tr. 1855). Jones thereafter called his own expert witness, Andrew Sulner, to refute this testimony. (Sulner: Tr. 2906-2995). Sulner's testimony — in which he concluded that exhibits 26 and 27 were not forgeries — was based in large part on his comparison of the challenged exhibits with People's Exhibit 25A (Sulner: Tr. 2943, 2945-47, 2949-50, 2955-56, 2959-61, 2974-82), a supposed known exemplar of Maples' handwriting. (Maples: Tr. 548-49, 919-23). Sulner conceded on cross-examination, however, that if People's Exhibit 25A was also a forgery then his conclusion would change. (Sulner: Tr. 2978).

During cross-examination, Maples was asked about the lease agreement. (Maples: Tr. 967-70). Although she did not specifically recall the addendum to the lease in which Jones was listed as her agent for purposes of admitting people to the apartment, she answered "yes" when asked if she initialed the addendum. (Maples: Tr. 968-69). When recalled by the State, however, Maples testified that after analyzing the initials on the lease more closely "it did not look like [her] signature." (Maples: Tr. 1998). This view was shared by the State's handwriting expert, Lesnevich, who concluded that the initials on the lease had been forged. (Lesnevich: Tr. 1863-64). The real estate broker who helped Maples find the apartment, Vincenza Garcia, testified that the lease had been missing from her files and that the addendum to the lease, identified as paragraph "52A," was missing initials from the agent for the owner of the apartment that would have been there had the addendum been genuine. (Garcia: Tr. 2139-74).

The prosecutor's comments during summation relating to the forged documents were as follows:

MR. SARACCO: . . . . We have no obligation to prove — forgery is not a charged crime in this case, and there's no obligation, and you won't hear the judge instruct any obligation on the People to prove beyond a reasonable doubt whether the two letters, #26 and #27 — People's #26 and #27, were forged by Mr. Jones. We certainly contend that they were. You've heard from two experts; one testifying for the People, Mr. Lesnevich; one testifying this morning, Mr. Sulner, for the defense; each with clearly diverse opinions from their examination of the various documents. This is not a battle of experts. There's no necessity for you to resolve which expert you accept. There may be genuine disagreement between the jurors as to — that can't be resolved about these documents. I submit to you they are absolutely forgeries. But . . . there is no requirement of unanimity between the 12 deliberating jurors as to whether these documents were forged or not.

* * *

MR. SARACCO: . . . . Take a look. You're allowed to do this. You take a look at the known samples and take a look at the notes. You can do that. You don't have to rely on any expert. Use your own two eyes. You can clearly see this is not her handwriting from any of the samplings that have clearly been established as hers. You don't have to rely on any of these experts. Use your own two eyes and take a look at them. They're, clearly, different handwriting than what we know to be hers. And I submit to you, I think we missed one. Forgery, that is. I think, although Ms. Maples —

MR. JONES: Objection.

THE COURT: Well, there's been no testimony that that's a forgery.

MR. SARACCO: What?

THE COURT: You're talking about the other document?

MR. SARACCO: Yeah. #25A

THE COURT: Comment on what the evidence is about that.

* * *

MR. SARACCO: . . . . The same goes with the lease. We submit to you the MM portion and the addendum 52A is also a forgery, whereas attempting to show she didn't have a lease for 4A and 8A because Donald Trump owned it, but the last apartment she had I'm allowed to come and go. In fact, I'm the one supposed to come and go. It's our contention he put these in, put the initials on.

(Tr. 3098-99; 3103-04; 3105).

Jones' specific objection to these statements is not entirely clear. He argues that the comments referred to an "uncharged crime, " that the prosecutor was acting as an "unsworn witness" in making the statements, and that the prosecutor improperly "encouraged and invited the jurors to become 'detectives,' a virtual Sherlock Holmes" by encouraging them to look at the handwriting exhibits and draw their own conclusions. Reply Brief at 99-101 (emphasis in original). Whatever the specific basis for his objections, however, the above statements were appropriate in light of Jones' own summation and the evidence presented at trial. Indeed, during his closing argument Jones argued that "the lease for rental of [Maples' previous apartment] expressly provides that I be the agent admitting anyone to the premises" and referred to his expert and invited the jury to conclude that Maples in fact wrote the various notes presented during trial. (Tr. 3062-66). The prosecutor appropriately countered during his summation that the notes and the initials on the lease were forgeries and that the exhibits constituted "some evidence of consciousness of guilt." (Tr. 3099). As the prosecution put forth evidence at trial in support of this position, commenting on and marshaling this evidence during summation does represent misconduct.

c. Matters not in evidence that "denigrate[d] a key defense witness."

Defense witness Fitzsimmons testified at trial that he had gone with Jones to Maples' apartment "many times" and, when Maples was not home, would wait in the lobby while Jones went up to the apartment by himself to "pick up" things. (Fitzsimmons: Tr. 2859-60, 2872-73). With this testimony Jones apparently sought to establish that he had frequent and routine access to Maples' apartment. Maples had testified during trial, however, that Jones had not been given permission to enter her apartment alone on any occasion. (Maples: Tr. 334-35, 360, 371, 389, 394-95, 553-54, 944-47, 981-82, 1064-65, 1076, 1082).

During summation, the prosecution made the following statement: "[Fitzsimmons] may have been with [Jones] and accompanied him and stayed downstairs when, I submit to you, [Jones] did the other burglaries. I just don't know." (Tr. 3116-17). Jones objected to this comment. (Tr. 3117). In sustaining the objection, the trial court noted for the jury that "[t]he defendant is not charged with any other burglaries." (Tr. 3117).

To the extent Jones argues this statement was improper because it refers to an uncharged crime he purportedly committed, the issue is discussed in subsection III.F.2.e below. To the extent he argues this statement was improper because it "denigrate[d] a crucial defense witness," Amended Declaration, ¶ 30; accord Reply Brief at 96, this claim is rejected. The prosecutor's statement appears simply to indicate that he was accepting Fitzsimmons' testimony only for the limited purpose of corroborating that Jones had been present in Maples' building — but not that his testimony showed that Jones had authority to enter her apartment. In fact, this was the very argument the prosecutor made after the objection was sustained. (Tr. 3117). Thus, the prosecutor's statement during summation was not even an attack on Fitzsimmons but merely an appropriate comment on the evidence.

d. Maples' lack of "motive" to commit perjury.

Throughout his summation Jones made repeated attempts to convince the jury that Maples' testimony was "deplorabl[y] false" and that she was not to be believed. (See, e.g., Tr. 3002-03, 3026, 3030-31, 3041, 3052-53, 3054, 3076). In response, the prosecutor stated during his summation that Maples had "no motive to . . . perjure herself." (Tr. 3123). Jones did not object to the comment but now argues that it was impermissible for the prosecutor to "vouch" for Maples in this manner. Reply Brief at 96-97.

While it is generally true that the State should not vouch for its own witness' credibility, the Second Circuit has specifically noted that a prosecutor may argue that a witness had "no reason to lie" where the defense summation "invited this response." Gonzalez, 934 F.2d at 424; see also Ramos v. Keane, 1994 WL 97080, at *4 (S.D.N.Y. Mar. 23, 1994) ("a prosecutor may present what . . . amounts to a boisterous argument if it is specifically done in rebuttal to assertions made by defense counsel in order to remove any stigma cast upon the government or its witnesses.") (citation and quotation omitted). Here, the prosecutor was directly responding to Jones' relentless attacks on Maples' credibility. Accordingly, the comment was proper.

e. Uncharged crimes.

Jones also argues that the prosecutor improperly referred to a number of uncharged crimes in his summation. Reply Brief at 96, 99-101, 104-06. Specifically, Jones points to the statement discussed above by the prosecutor that "I think we missed one. Forgery, that is." (Tr. 3104). He also points to statements during the State's summation regarding "other burglaries" (Tr. 3117), and certain missing nude photographs. (Tr. 3110-13).

i. Reference to the "missed" forgery and "other burglaries."

Assuming the prosecutor's comments on the forgeries and other burglaries to be improper, they did not "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 643. The trial court sustained objections to these comments and gave curative instructions. (Tr. 3104, 3117, 3156). With respect to the forgery that was "missed," the judge noted for the jury that "there's been no testimony that that's a forgery" and directed the prosecutor to "[c]omment on what the evidence is about that." (Tr. 3104). Later, while charging the jury, the judge further emphasized that "of course, as everybody realizes, the defendant is not accused of forgery in this case." (Tr. 3156). With respect to the burglaries, Justice Obus sustained the objection and specifically reminded the jury that Jones was "not charged with any other burglaries." (Tr. 3117). In his general instructions, the court cautioned the jury that [i]t is, of course, essential that you base your verdict upon the evidence alone. We

discussed several times what the evidence is and that will be the testimony that you heard from the mouths of witnesses, and the exhibits that were actually introduced into evidence during the trial, along with the stipulations that were agreed to by the parties.

(Tr. 3142; see also Tr. 3143-44 ("Again, you must decide the case solely on the evidence before you and determine the issues on what you believe to be the credible and believable evidence . . . I remind you that evidence is testimony, the physical exhibits that were actually introduced and stipulations")). The judge also explained to the jury that the summations did not constitute evidence and were not to be the basis of their verdict. (Tr. 3143-45).

Evaluating this claim in light of the severity of the misconduct, the curative measures taken, and the likelihood of conviction absent the misconduct, see, e.g., Blissett, 924 F.2d at 440, habeas relief is not warranted. Any misconduct was hardly severe as the comments were not in any way central to the summation. Second, the trial judge properly sustained appropriate objections and gave curative instructions and a detailed final charge. Finally, given the overwhelming evidence of guilt, it is virtually certain that Jones would have been convicted notwithstanding the prosecutor's comments during summation.

ii. Reference to the missing nude photographs.

Jones elicited testimony from Maples that she was missing nude photographs of herself (Maples: Tr. 901), and that she had accused Jones of faxing nude photographs of herself to others. (Maples: Tr. 903). During his opening statement and again during his summation, Jones suggested that Maples' real interest in accusing Jones of the criminal charges was to obtain the return of these nude photographs. (Tr. 341, 3049-50, 3059; see also Maples: Tr. 1033-35). During the State's summation, the prosecutor referenced these photographs and stated in passing "[c]ertainly, we contend that Mr. Jones did steal the nude photographs." (Tr. 3110-11). Jones did not object to this comment.

Assuming that the prosecutor's comment on this score was improper, it too did not "infect the trial with unfairness" such that it was tantamount to a denial of due process. Donnelly, 416 U.S. at 643. First, this misconduct can hardly be deemed "severe," as evidenced by Jones' failure to make an objection. See Sutton v. Herbert, 39 F. Supp.2d 335, 341 (S.D.N.Y. 1999) (failure to object to an argument suggests that it was not perceived as having a substantial adverse affect) (citing Nichols v. Scott, 69 F.3d 1125, 1278 (5th Cir. 1995)). Indeed, the reference was but a small part of the prosecutor's summation, the heart of which was focused properly on the testimony and evidence presented. Moreover, the error resulting from this remark was sufficiently cured by the trial court's instructions to the jury that repeatedly emphasized that their decision was to be based on the evidence alone and not on the statements made by the parties "by way of openings or summations." (Tr. 3142-45). Finally, it is clear the conviction would have been obtained even absent this single comment.

f. Other improper comments.

In addition to the above instances of purported misconduct, Jones has referred to other "Inflammatory Remarks" and "Impermissibl[e] Comment[s]" that he argues warrant habeas relief. See Reply Brief at 95-96, 104-06. Jones provides no transcript citations for or clear reference to the bulk of these comments. The Court has reviewed the summation in full. To the extent the Court has been able to identify the basis for these arguments in the record, they did not deprive Jones of a fair trial for reasons substantially similar to those stated above.

In sum, the Appellate Division's decision that Jones had not presented a federal constitutional claim on this point was not "contrary to, or [did not] involve an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d).

G. Chain of Custody Evidence

Jones argues that the admission of Maples' shoes as evidence, without establishing a chain of custody, deprived him of his rights of due process and to a fair trial. Reply Brief at 107-13; Amended Declaration, ¶ 37(G). The State has countered that, even if this claim was reviewable on habeas, under New York law a chain of custody was not required for the evidence presented. See Resp. Mem. at 84-87.

It is well settled that "'federal habeas corpus relief does not lie for errors of state law,'" Estelle, 502 U.S. at 67 (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); accord Pulley v. Harris, 465 U.S. 37, 41 (1984), and that "erroneous evidentiary rulings rarely rise to the level of a constitutional violation." Vega v. Artuz, 2002 WL 252764, at *13 (S.D.N.Y. Feb. 20, 2002) (citing Washington v. Schriver, 255 F.3d 45, 56 (2d Cir. 2001)); see also Brooks v. Artuz, 2000 WL 1532918, at *6 (S.D.N.Y. Oct. 17, 2000) ("Evidentiary rulings by the state trial court are generally a matter of state law and do not automatically rise to the level of constitutional error sufficient to warrant habeas corpus relief.") (citations omitted). This principle applies equally to rulings involving chain of custody. See, e.g., Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987) ("Decisions concerning the foundation that must be laid for the chain of custody of a substance offered into evidence . . . [are] well within the sound discretion of the state trial judge, and a federal district court should not exercise supervisory review over such decisions."). Thus, habeas relief is available only if a petitioner can demonstrate that an erroneous evidentiary ruling was of such degree that it deprived him of a fair trial. See Copes v. Schriver, 1997 WL 659096, at *3 (S.D.N.Y. Oct. 22, 1997) ("[habeas] petitioner bears a heavy burden because evidentiary errors generally do not rise to constitutional magnitude"); see also Vega, 2002 WL 252764, at *13 ("habeas relief will only be available if a petitioner can show that the evidentiary error deprived him of a fundamentally fair trial") (citations omitted).

Jones has not shown error here much less constitutional error. Under New York law, "[w]hen an 'object possesses unique characteristics or markings and is not subject to material alteration which is not readily apparent,' a simple identification is sufficient to warrant admission." People v. Julian, 41 N.Y.2d 340, 343 (1977) (quoting People v. Connelly, 35 N.Y.2d 171, 174 (1974)). Thus, a chain of custody need not be established for non-fungible items such as shoes. See, e.g., People v. Lorenzo, 224 A.D.2d 924 (4th Dep't) ("the People were not required to establish a chain of custody of [a 1921 silver dollar encased in cardboard] because it was not fungible") (citations omitted), leave to appeal denied, 88 N.Y.2d 967 (1996); People v. Hill, 220 A.D.2d 927, 928 (3d Dep't 1995) ("strict proof of the chain of custody was not required because clothing is not fungible") (citations omitted); People v. Love, 187 A.D.2d 1030 (4th Dep't 1992) (rejecting defendant's chain-of-custody argument, finding that the victim's clothing was non-fungible and thus identification "was sufficient evidence of accuracy and authenticity") (citations omitted), leave to appeal denied, 81 N.Y.2d 888 (1993); People v. Wynn, 176 A.D.2d 375, 377 (3d Dep't 1991) (chain of custody not necessary where stolen clothing was non-fungible and "specifically identifiable by its color [and] style"). Notably, the case on which Jones relies for his argument states that, even for fungible evidence, proof as to chain of custody is but "one accepted technique for showing . . . authenticity." Julian, 41 N.Y.2d at 343 (emphasis added); see id. ("chain of custody technique [is] the method of general, but not exclusive, acceptability").

Here, Maples' shoes were capable of identification — and indeed were identified unequivocally — by Maples during the trial. (Maples: Tr. 496-502, 509, 511-45). See also Julian, 41 N.Y.2d at 343 ("the two basic requirements for showing authenticity . . . [are] 'reasonable assurances of identity and unchanged condition'") (quoting People v. Porter, 46 A.D.2d 307, 311 (3d Dep't 1974)). Jones was of course free to challenge the identification on cross-examination and to argue its unreliability as part of his summation. The decision to uphold the admission of this evidence did not represent an unreasonable application of Supreme Court law.

H. Jury Instructions

Jones argues that Justice Obus erred in two respects with regard to the jury instructions: (1) by failing to give a "missing witness" instruction; and (2) by improperly defining the elements of the crime of burglary. See Reply Brief at 68-81.

1. Applicable Law

A habeas petitioner who challenges a state conviction through "a claim of improper jury instructions faces a substantial burden." DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); see also Henderson v. Kibbe, 431 U.S. 145, 154 (1977) ("The burden of demonstrating that an erroneous instruction was so prejudicial that it will support a collateral attack . . . is even greater than the showing required to establish plain error on direct appeal."). The Supreme Court has stated Before a federal court may overturn a conviction resulting from a state trial in

which [a challenged] instruction was used, it must be established not merely that the instruction [was] undesirable, erroneous, or even "universally condemned," but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment.

Cupp v. Naughten, 414 U.S. 141, 146 (1973). On habeas review, "a single instruction to the jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Id. at 146-47 (citing Boyd v. United States, 271 U.S. 104, 107 (1926)). Jones has an "especially heavy" burden to the extent he is challenging an instruction omitted from the charge. See Kibbe, 431 U.S. at 155 ("[a]n omission, or incomplete instruction, is less likely to be prejudicial than a misstatement of the law").

An alleged error of state law in a jury instruction requires "'the petitioner [to] show not only that the instruction misstated state law but also that the error violated a right guaranteed to him by federal law.'" Davis v. Strack, 270 F.3d 111, 123 (2d Cir. 2001) (quoting Casillas v.Scully, 769 F.2d 60, 63 (2d Cir. 1985)) (citing cases). The first step in evaluating such a claim is to determine if "the petitioner was erroneously deprived of a jury instruction to which he was entitled under state law." Id. If the petitioner was wrongly denied the instruction under state law, a court must then determine if "the erroneous failure to give such a charge was sufficiently harmful to make the conviction unfair." Id. at 124 (citing Cupp, 414 U.S. at 146).

2. Failure to Give A Missing Witness Charge

Jones claims that he was denied his due process rights because Justice Obus refused to give a missing witness charge. See Reply Brief at 68-75. Jones sought the charge because Knapp and Trump allegedly could have given him access to the apartment and did not testify. See Reply Brief at 63-68. Justice Obus refused to give a missing witness charge, finding that Trump and Knapp were not within the control of either party. (Tr. 2890-91).

"The decision whether to give a missing witness charge is committed to the sound discretion of the trial court." Manning v. Walker, 2001 WL 25637, at *9 (E.D.N.Y. Jan. 3, 2001) (citing Reid, 961 F.2d at 377) (citation omitted). A state court's failure to give such a charge "will rarely support a reversal or habeas relief since reviewing courts recognize the ''aura of gamesmanship' that frequently accompanies requests for a missing witness charge as to which the trial judge will have a surer sense' than any reviewing court." Malik v. Kelly, 1999 WL 390604, at *7 (E.D.N.Y. Apr. 6, 1999) (quoting United States v. Torres, 845 F.2d 1165, 1171 (2d Cir. 1988), in turn quoting United States v. Erb, 543 F.2d 438, 445 (2d Cir. 1976)). Cases are legion that have refused to grant habeas relief to petitioners based on an alleged failure to provide a missing witness charge. See, e.g., Reid, 961 F.2d at 377; Correa v. Duncan, 172 F. Supp.2d 378, 381-82 (E.D.N.Y. 2001); Johnson v. Greiner, 2001 WL 876811, at *8-*9 (S.D.N.Y. Aug. 2, 2001), aff'd, 2003 WL 358702 (2d Cir. Feb. 19, 2003); Manning v. Walker, 2001 WL 25637, at *9-*10 (E.D.N.Y. Jan. 3, 2001); Morillo v. Crinder, 1997 WL 724656, at *5-*6 (S.D.N.Y. Nov. 18, 1997); Smithwick v. Walker, 758 F. Supp. 178, 188 (S.D.N.Y.), aff'd, 948 F.2d 1278 (2d Cir. 1991).

Under New York law, the party seeking a missing witness charge must demonstrate "the uncalled witness is knowledgeable about a material issue upon which the evidence is already in the case; that the witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him, and that the witness is available to such party." People v. Gonzalez, 68 N.Y.2d 424, 427 (1986) (citations omitted); accord People v. Kitching, 78 N.Y.2d 532, 536 (1991). Here, Justice Obus found that Trump and Knapp were not under the control of the State. (Tr. 2890). Because this is a factual determination, it is presumed to be correct unless rebutted by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Jones asserts that case law has held that when missing witnesses were the husband or roommate of the complaining witness, they were under the control of the State. See Reply Brief at 71. However, Jones cites no such case for this proposition and it is logically unsound. Because Jones has pointed to no violation of federal law resulting from the failure to give this charge, he cannot be granted habeas relief.

3. Failure to Properly Define Elements of the Crime

Jones also claims that Justice Obus failed to properly instruct the jury on the "license and privilege" element of the burglary charge. Reply Brief at 75-78. Jones' contention centers on the trial court's decision not to instruct the jury that someone other than Maples could have given him permission to enter the apartment. See id. at 75. Jones claims that Justice Obus promised to give this charge. See id. at 75-76. Jones also claims that the trial court erred by not offering an instruction regarding "implied consent." See id. at 78-80.

a. Requested instructions and the charge.

Prior to the end of the trial, Justice Obus and the parties discussed proposed jury charges. Ramsey gave the judge a proposed charge. (Tr. 2880). Jones asserts that he requested the following charge:

You have heard testimony that Marla Maples, Kim Knapp and Donald Trump had authority and control over the dwelling. Therefore if you find that the People have not proven beyond a reasonable doubt that all of these persons did not give the defendant permission or authority to enter the dwelling then you must find the defendant guilty.

Reply Brief at 75. Justice Obus stated that he believed he would "in substance . . . grant that charge." (Tr. 2881). But the judge specifically said: "I don't know I'll go through the names of people who have been mentioned in the testimony and summarize the evidence that way." (Tr. 2881). In response, Jones simply stated "Thank you, your Honor." (Tr. 2881). Jones claims because Justice Obus did not give the exact charge Jones had requested that he was unable to deliver an effective summation. See Reply Brief at 75-77. However, Justice Obus made no promise — nor was one implied — that he would provide verbatim the instruction offered by Jones.

In any event, Justice Obus specifically told Jones before summations that he would not deliver a missing witness instruction as to Trump and Knapp (Tr. 2890), and that Jones thus could not "argue to the jury they are to infer something from the absence of a witness or what that witness would have said." (Tr. 2891).

With respect to the elements of knowing unlawful entry, Justice Obus instructed the jury According to the law, a person enters a dwelling unlawfully when he has no license or privilege to enter. By that, the law means that he has no right, authority or permission to enter.

According to the law, a license or privilege to enter a building which is only partly opened to the public is not a license or privilege to enter that part of the building which is not open to the public.

So, the second element is that the defendant entered the dwelling unlawfully.

The third element is that the defendant knowingly entered the dwelling unlawfully.

According to the law, a person knowingly enters a dwelling unlawfully when he is aware he has no license or privilege to enter. Again, that means he has no right, authority or permission to enter.

(Tr. 3165). After the instructions, Jones objected by stating,

As to the effect on the dominion and control over that apartment, [I] don't know if the Court's instruction clarified that everybody who has dominion and control over an Apartment 8A or 4A could have given permission. It should be emphasized, you don't have to mention particular names, but that the people who have dominion and control over that apartment have the right to give that permission; not just Marla Maples.

(Tr. 3178). Justice Obus overruled the objection, finding the charge was correct as originally stated. (Tr. 3179). Jones made no objection regarding the lack of an instruction regarding "implied consent."

b. Correctness of the charge under New York law.

On habeas review of a claimed erroneous jury charge, the Court must look to New York law to determine whether the charge was in error. See Davis, 270 F.3d at 123. As already discussed, see Section III.D above, under New York law, there is no requirement that the prosecution must prove that every person who could conceivably have given a defendant access to an apartment did not. See Quinones, 173 A.D.2d at 396 ("the testimony of one or all of those who could consent to entry is not in all cases indispensable. "); see also Battle, 202 A.D.2d at 1045 ("there is no requirement that the owner of the burglarized premises testify that he did not give defendant permission to enter"). Thus, New York law does not require the court to instruct the jury regarding the possibility that someone other than the complaining witness could have given the defendant permission to be in the apartment. Furthermore, Justice Obus instructed the jury that Jones needed to be "aware" he did not have a right to enter the apartment. (Tr. 3165). Thus, the jury was properly instructed that Jones needed to know he had no consent — implied or express — to enter. As the instruction was in compliance with state law, Jones is not entitled to habeas relief.

I. Trial Court's Interference

Jones claims that the trial court deprived him of a fair trial by "interfering" with his right to "effective self-representation. " Amended Declaration, ¶ 37(I). Jones identified in this petition or in his brief to the Appellate Division several statements by the trial judge that allegedly were improper. See Jones Pro Se App. Br. at 24-26; Reply Brief at 18-19.

The first statement by Justice Obus arose after Jones asked the judge to instruct Maples not to look at the District Attorney. (Tr. 794). In denying the request Justice Obus stated, "I can appreciate you asking better questions, but I can't have everything I want either." (Tr. 795). Another statement, which occurred outside of the presence of the jury, arose after Jones requested a suspension of the trial to appeal an evidentiary ruling of Justice Obus. (Tr. 1311-12). In denying the request, Justice Obus stated, "Mr. Jones, In your vast legal experience you may not have heard of it, it does not mean it is not permitted." (Tr. 1312). The next incident came when Justice Obus, prior to questioning the jury pool whether their ability to render an impartial verdict had been impaired by the pace of the trial, stated "I realize this has been a long and sometimes tedious process for you." (Tr. 1803). The final incident came during a colloquy with a witness in front of the jury. The witness expressed confusion regarding some exhibits that he was being questioned about. Justice Obus stated that "[i]t's a problem we've had." (Tr. 2915).

A petitioner alleging he was deprived of a fair trial in state court based on an allegation of bias by the trial judge "faces a difficult task" as "a federal court will not lightly intervene when such a claim is asserted." Gayle v. Scully, 779 F.2d 802, 806 (2d Cir. 1985) (citing cases), cert. denied, 479 U.S. 838 (1986). "[I]t is abundantly clear that only infrequently does intervention by a trial judge rise to the level of a due process violation." Id. (citations omitted). A state trial judge's "conduct [in] a criminal trial would have to reach a significant extent and be adverse to the defendant to a substantial degree before the risk of either impaired functioning of the jury or lack of the appearance of a neutral judge conducting a fair trial exceeded constitutional limits." Daye v. Attorney Gen. of New York, 712 F.2d 1566, 1572 (2d Cir. 1983), cert. denied, 464 U.S. 1048 (1984); see also Salahuddin v. Strack, 1998 WL 812648, at *8 (E.D.N.Y. Aug. 12, 1998) ("Only judicial misconduct that renders the trial so fundamentally unfair as to violate federal due process under the Constitution requires habeas relief.") (citations omitted). Justice Obus' conduct came nowhere near to reaching this demanding standard.

The Supreme Court has stated, "judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge." Liteky v. United States, 510 U.S. 540, 555 (1994); see also United States v. Bejasa, 904 F.2d 137, 141 (2d Cir.) ("[j]udges, being human, are not immune to feelings of frustration at the occasional antics or inartfulness of attorneys . . ."), cert. denied, 498 U.S. 921 (1990). The remarks by Justice Obus are so innocuous that they could not possibly have created any danger of depriving Jones of a fair trial. Indeed, the meritlessness of Jones' claim is demonstrated by an examination of the cases in which writs of habeas corpus have been denied because the petitioner had failed to show judicial bias. See, e.g., Gayle, 779 F.2d at 806-13 (judge disparaged defense counsel, asked questions of prosecution witnesses to bolster their testimony, openly disparaged defendant's testimony, and asked the Jamaican defendant whether Rastafarians were "animals"); Johnson v. Scully, 727 F.2d 222, 225-27 (2d Cir. 1984) (judge emphasized the prosecution's view of the evidence to the jury, directly challenged defendant's claim of innocence, and frequently rebuked the defense counsel in front of the jury); Daye, 712 F.2d at 1568-70 (judge asked questions to reinforce identifications of the defendant, referred to the robber as the defendant, and challenged defendant's testimony); Francolino v. Kuhlman, 224 F. Supp.2d 615, 641-52 (S.D.N.Y. 2002) (trial judge disparaged defense attorneys, bolstered prosecution witnesses, and stated she thought a defense witness was "full of bologna").

J. Speedy Trial

Jones claims that his rights were violated due to a failure to hold a speedy trial in this matter. Reply Brief at 121-24. Because errors of state law are not grounds for granting habeas relief, see Estelle, 502 U.S. at 67-68, any non-compliance with New York State's speedy trial statute is irrelevant to this claim. The only issue is whether the Appellate Division's decision rejecting this claim was contrary to or involved an unreasonable application of clearly established Supreme Court law governing the federal constitutional right to a speedy trial.

The Supreme Court has identified four factors to be assessed in determining whether the right to a speedy trial under the Sixth Amendment is violated: "Length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Barker v. Wingo, 407 U.S. 514, 530 (1972) (footnote omitted). "[N]one of the four factors . . . [are] either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant." Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003) (per curiam). However, Barker makes clear that "[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors." Barker, 407 U.S. at 530. Thus, "to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from 'presumptively prejudicial' delay." Doggett v. United States, 505 U.S. 647, 651-52 (1992) (citing Barker, 407 U.S. at 530-31).

The first question to be determined is what period should be used to evaluate whether Jones' right to a speedy trial was violated. Jones contends that the period is the "nearly three years" that ran between Judge Scheindlin's initial opinion granting Jones' habeas petition in September 1996 and his trial in April 1999. See Reply Brief at 123. The respondent contends that the speedy trial analysis should not include the one-year period that Jones' case was pending before the Second Circuit. The reasons for the delay, however, are more appropriately considered as part of the second Barker factor. Thus, accepting Jones' calculation, the period to be considered is 31 months. Significantly, the Second Circuit has characterized a 28-month delay between arrest and trial as not "extraordinary," United States v. Infanti, 474 F.2d 522, 527 (2d Cir. 1973), although it has also stated that a delay of "over three years" is "sufficient to trigger an inquiry into a possible Sixth Amendment violation." Davis, 316 F.3d at 127 (citing Barker, 407 U.S. at 530).

But what is far more pertinent here is the reason for the delay in Jones' trial. Barker emphasizes that different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.

407 U.S. at 531 (footnote omitted). Here, there is not the slightest suggestion of a "deliberate attempt" to delay the trial by the prosecution. As already noted, one year of this period was attributable to the State's appeal of the district court's order. This is certainly a "valid reason" for the State to have delayed Jones' trial as it might have turned out that such a trial was unnecessary. Significantly, Jones was not incarcerated for this period and there is nothing to suggest that the appeal did not simply represent the State's understandable desire to challenge the granting of the writ — rather than some deliberate attempt to delay the retrial.

Once proceedings started, it appears there was some delay that resulted from the lack of an appointment of counsel for Jones and the reassignment of the case to another judge. But again, there is no basis for concluding that this represented some deliberate effort to delay the retrial. Additional time was taken up by numerous motions from Jones, including applications to the Appellate Division. See April 29 Order at 3 (denying CPL § 30. 30 motion in part because of time consumed by motion practice). Obviously these motions do not represent attempts by the prosecution to delay Jones' trial. See generally United States v. Loud Hawk, 474 U.S. 302, 316 (1986) ("[a] defendant who resorts to interlocutory appeal[s] normally should not be able . . . to reap the reward of dismissal for failure to receive a speedy trial"). In a case such as this, where the delays are not attributable to the State, the second factor weighs heavily against the petitioner. See, e.g., United States v. Lane, 561 F.2d 1075, 1079 (2d Cir. 1977) (no speedy trial violation because, inter alia, "[w]hile the record here contains some rather long unexplained delays, there is no indication that these are attributable either to deliberate procrastination or even negligent inaction on the part of the Government"); Howard v. Lacy, 58 F. Supp.2d 157, 168 (S.D.N.Y. 1999) ("nothing in the record indicates a deliberate attempt by the State to delay the trial in order to hamper [petitioner's] defense") (citing cases); Amable v. Scully, 1993 WL 300036, at *3 (S.D.N.Y. Aug. 4, 1993) ("conclusory allegation" that "delay was due to the State's attempt to secure an 'unfair advantage'" was "not supported by any evidence of bad faith on the part of the State"); Holmes v. Bartlett, 810 F. Supp. 550, 562 (S.D.N.Y. 1993) ("although the cause of delay is uncertain, nothing in the record suggests that the State of New York intended to delay the trial in this case or that the prosecutor obtained any strategic advantage from the delay") (citing Barker, 407 U.S. at 531).

With respect to the remaining factors, Jones did assert his right to a speedy trial in February 1998 and again prior to trial in March 1999. But he completely fails on the "prejudice" prong of the Barker analysis. In examining whether a defendant was prejudiced in this context three factors are relevant: (1) prevention of oppressive pretrial incarceration; (2) minimizing anxiety and the concern of the accused; and (3) the possibility that the defendant's ability to put on an adequate defense was impaired. Barker, 407 U.S. at 532. "Of these, the most serious is the last." Id.

Jones was incarcerated for only 30 days during the period at issue. Assuming Jones can properly claim anxiety and concern during both this and the remaining period, he has put forth no evidence whatsoever suggesting that the delay impaired his ability to put on an adequate defense. Accordingly, he has not shown that he was prejudiced. While "a 'showing of prejudice is not a prerequisite to finding a sixth amendment violation, courts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice.'" United States v. Jones, 129 F.3d 718, 724 (2d Cir. 1997) (quoting Rayborn v. Scully, 858 F.2d 84, 94 (2d Cir. 1988)) (citations omitted), cert. denied, 524 U.S. 911 (1998). Considering all the Barker factors together, the Appellate Division certainly did not "unreasonably" apply Supreme Court law in concluding that Jones had not made out a federal constitutional speedy trial violation.

K. Failure to Disclose Mitigating Evidence

Jones also makes arguments centering on a conversation Maples allegedly had with Barry Mitchell, a former limousine driver for Trump and Maples and a potential defense witness. Reply Brief at 114-15; Amended Declaration, ¶¶ 35, 37(L). Jones alleges that Maples sought to influence Mitchell, who ultimately did not testify at trial. Reply Brief at 114-15; see also First 440.10 Motion, ¶¶ 5-9, 23-25, 43-46. According to Jones, Mitchell had brought various items of clothing and personal items belonging to Maples and left them at Jones' office/apartment on an unspecified occasion, see First 440.10 Motion, ¶¶ 8, 19, 25, 32, 45 — an assertion that Maples either denied or would not admit during her testimony. Id., ¶ 8; Maples: Tr. 965-67. In his First 440.10 motion, Jones alleged that he learned from an unnamed source after the trial that Maples had contacted Mitchell during the trial. According to this source, Maples called Mitchell at home; noted that Mitchell had been subpoenaed to testify during the trial, and invited Mitchell to her restaurant. First 440.10 Motion, ¶¶ 4-7. Jones speculated that the purpose of the call was "to improperly influence" Mitchell, id. ¶ 5, and that Maples' influence supposedly caused Mitchell to "feign memory loss" and thus prejudiced Jones at trial. Id., ¶ 23. Jones argued that "the jury had a right to know that Maples had attempted to influence Mr. Mitchell's testimony on a material issue, which not only affected the jury's perception of Maples' credibility, but most likely would have affected the outcome of the trial itself." Id., ¶ 24. Jones further argued the State was complicit in this impropriety because Assistant District Attorney Kevin Woods — one of the prosecutors assigned to the case — told Jones after the trial that he "knew about the contact between Maples and Mitchell." Id., ¶ 42.

Jones contends that the trial court erred in denying him a new trial on this ground, Reply Brief at 114, and argues that the prosecution violated Brady v. Maryland, 373 U.S. 83 (1963) when it failed to disclose the conversation at the time. Amended Declaration, ¶¶ 35, 37(L); see also Reply Brief at 113-15. The State responds that this claim is procedurally barred and in any event is without merit. See Resp. Mem. at 108-114. Jones requests an evidentiary hearing to determine if Maples attempted to prevent Mitchell from testifying. See Reply Brief at 114-15.

1. Procedural Default

Where "the last state court rendering a judgment in the case clearly and expressly" rejects a petitioner's claim because the petitioner failed to comply with a state procedural rule, the procedural default constitutes an adequate and independent ground for the state court decision that 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, 262-63 (1989) (citations and internal quotations omitted); accord Coleman v. Thompson, 501 U.S. 722, 750 (1991); Fama, 235 F.3d at 809; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994), cert. denied, 514 U.S. 1054 (1995). A "fundamental miscarriage of justice" requires a demonstration of "actual innocence." See, e. g., Calderon v. Thompson, 523 U.S. 538, 559 (1998). Although procedurally defaulted claims are deemed to be exhausted for habeas corpus purposes, they are not subject to review by the federal court. See, e.g., Bossett, 41 F.3d at 829. "[A]s 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, 489 U.S. at 264 n. 10. The doctrine applies even where the state court issues an alternative holding that addresses the procedurally defaulted claim on the merits. See, e.g., Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

Respondent argues that Justice Obus, in his March 29, 2000 decision denying Jones' first section 440.10 motion, expressly rejected this claim on the basis of procedural default — namely, that "defendant's contentions rest on the double hearsay statements of an unattributed source [and thus did not comply] with the requirement [of CPL § 440.30(4)(b)] that his motion contain sworn allegations of fact sufficient to establish a legal basis for the requested relief." See First 440.10 Decision at 2. Because leave to appeal this decision was denied, see People v. Jones, 2000 N.Y. App. Div. LEXIS 10294, Justice Obus' opinion represents the "last court" rendering judgment on this issue. See Stanley v. Kuhlman, 10 F. Supp.2d 250, 254 n. 1 (E.D.N.Y. 1998).

The respondent is correct that some case law suggests that a violation of CPL § 440.30(4)(b) "create[s] a procedural bar" and thus precludes habeas relief. See White v. Keane, 2001 WL 699053, at *2 (S.D.N.Y. June 21, 2001) (dictum); accord Roberts v. Scully, 875 F. Supp. 182, 193 n. 7 (S.D.N.Y.) (dictum), aff'd, 71 F.3d 406 (2d Cir. 1995). As Jones has neither "show[n] cause for the default and prejudice attributable thereto" nor has he demonstrated that "failure to consider the federal claim will result in a fundamental miscarriage of justice," Harris, 489 U.S. at 262 (citations and quotations omitted), this authority would support the view that his claim is procedurally barred. However, because there is authority holding that the denial of a claim based on CPL § 440.30(4)(b) fails to constitute an adequate and independent state ground, see, e.g., Lou v. Mantello, 2001 WL 1152817, at *9 n. 9 (E.D.N.Y. Sept. 25, 2001) (citing cases), this Court will review the merits of this claim.

2. Merits of the Claim

To the extent that Jones seeks habeas relief on the ground that the trial court should have granted him a new trial based on newly discovered evidence, federal habeas review is not available. The Supreme Court has made clear that:

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.

Chief Justice Warren made this clear in Townsend v. Sain, [ 372 U.S. 293, 317 (1963)] (emphasis added):

Where newly discovered evidence is alleged in a habeas application, evidence which could not reasonably have been presented to the state trier of facts, the federal court must grant an evidentiary hearing. Of course, such evidence must bear upon the constitutionality of the applicant's detention; the existence merely of newly discovered evidence relevant to the guilt of a state prisoner is not a ground for relief on federal habeas corpus.

This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution — not to correct errors of fact.

Herrera v. Collins, 506 U.S. 390, 400 (1993) (emphasis in original). In other words, "it is not sufficient [on habeas review] to show that the trial court committed error in failing to set aside the jury's verdict." White v. Keane, 51 F. Supp.2d 495, 502 (S.D.N.Y. 1999).

Jones also argues the failure to disclose this information constituted a violation of Brady. Brady and its progeny mandate that prosecutors turn over exculpatory and impeachment evidence where such evidence is material either to guilt or punishment. Brady, 373 U.S. at 87; see, e.g., United States v. Bagley, 473 U.S. 667, 676 (1985). "'There are three components of a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.'" Boyette v. Lefevre, 246 F.3d 76, 89 (2d Cir. 2001) (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

Jones does not meet the first two components of this test because his allegations do not show that the State suppressed evidence that was exculpatory or impeaching. The fact that Maples contacted Mitchell was neither exculpatory or impeaching. In addition, Jones alleged only that the prosecutor "knew" of the contact between Maples and Mitchell not that the prosecutor knew of any exculpatory or impeaching aspect to the contact. First 440.10 Motion, ¶¶ 19-26, 42, 44-46. As Justice Obus noted,

the alleged statement of Assistant District Attorney Kevin Woods that he knew of the purported contact between Maples and Mitchell does not salvage the defendant's claim. There is, of course, no per se bar against witnesses speaking to each other. And, aside from its hearsay nature, there is nothing in Mr. Woods' purported acknowledgment to suggest, let alone establish, that there was any improper contact between the proposed witnesses.

First 440.10 Decision at 4.

Jones' claim fails also because he did not meet the "prejudice" component of a Brady claim. Prejudice is shown only where the evidence is "material, i.e., 'there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Boyette, 246 F.3d at 91 (quoting Bagley, 473 U.S. at 682). Thus, there can be no Brady violation absent a showing that the state willfully or inadvertently withheld "material evidence." See Busiello v. McGinnis, 235 F. Supp.2d 179, 190 (E.D.N.Y. 2002) (citing Bagley, 473 U.S. at 674). The evidence of the contact itself was certainly not "material." In addition, even the testimony that Jones hoped to elicit from Mitchell was itself not of significance. In discussing the import of this potential testimony, Justice Obus found the evidence was not material to the issue in the case, that is whether the defendant knowingly

entered the complainant's dwelling unlawfully with the intent to commit a crime therein. The fact that the complainant may have asked someone to drop off bags of her belongings at the defendant's office/apartment on some other occasion is simply not probative of whether the defendant knowingly entered the complainant's dwelling unlawfully with the intent to commit a crime therein. It follows further that because the "evidence" is not material, it cannot be said to be of such a nature that it would probably change the result if a new trial were held.

First 440.10 Decision at 3.

Rather than address Justice Obus' ruling on this score, Jones instead asks the Court to "conduct an evidentiary hearing into petitioner's accusations of witness tampering by the complainant in a conspiracy with prosecutors to discourage, prevent or otherwise influence the testimony of defense-subpoenaed witness Barry Mitchell." Reply Brief 114. To obtain such a hearing, however, Jones would have to show at a minimum that this contact or Mitchell's testimony "would be sufficient to establish by clear and convincing evidence that but for constitutional error, no reasonable factfinder would have found [Jones] guilty of the underlying offenses." 28 U.S.C. § 2254(e)(2)(B). Jones has not made this showing. Because of the lack of any "constitutional error" and because Jones has not met the standard described in the statute, there is no ground on which to hold an evidentiary hearing.

L. Contact with a Potential Witness

Jones argues that the trial court improperly barred him from directly contacting Mitchell, whom Jones had subpoenaed. Amended Declaration, ¶¶ 36, 37(M); Reply Brief at 113-14. On Tuesday, April 13, 1999, Jones informed the court and the prosecution of his attempts to subpoena various individuals from the Trump Organization. (Tr. at 884-86). In particular, Jones wished to call Mitchell as a witness during the trial. The prosecution responded that they had no control over the Trump Organization and were unable to ensure the attendance or response from its employees. (Tr. 886). The court informed Jones that he should consult with Ramsey about getting compliance from the Trump Organization. (Tr. 886).

On April 20, 1999, Justice Obus directed the State to help obtain information on Mitchell's whereabouts. (Tr. 1575-76). In addition, the judge asked Matthew Calamari, a prosecution witness, for his help in securing Mitchell's appearance. (Tr. 1693-94). On April 23, 1999, the prosecution provided Ramsey with a phone number for Mitchell. (Tr. 2089). However, as the prosecution believed Jones had a history of harassing witnesses, this phone number was given to Ramsey with the understanding that it not be provided to Jones. (Tr. 2089; see also Tr. 1575-77).

On April 27, Justice Obus dealt again with the issue regarding Mitchell. Justice Obus stated that Jones was not allowed to personally contact Mitchell given the allegations of past harassment. (Tr. 2618-19). After the prosecution provided Ramsey with Mitchell's phone number, Justice Obus ordered that the phone number not be given to Jones. (Tr. at 2618-19). Ramsey stated that he had personally spoken to Mitchell who said he did not want to get involved. (Tr. 2619). Justice Obus indicated that, since he was under subpoena, Mitchell did not have that choice and directed the parties to inform Mitchell that his presence was needed. (Tr. 2619-20).

On May 4, 1999, Mitchell called Justice Obus to profess his desire not to testify. At that time, Justice Obus allowed Jones to speak to Mitchell directly. Jones thereafter withdrew his request to call him as a witness, stating that Mitchell "couldn't recall anything whatsoever." (Tr. 2905).

In this habeas petition, Jones argues that the trial court "interfered" with his pro se representation when it "barred [him] from communicating with Mitchell outside that allowed with respect to Mr. Ramsey, which was constitutional error and contrary to and/or an objectively unreasonable application of clearly established federal law." Reply Brief at 113. While Jones concedes that he did eventually speak with Mitchell during trial, he argues the "2-minute telephone conversation . . . did not suffice to cure constitutional error already committed, especially since all Mitchell said was he couldn't remember." Id. at 114.

The only authority Jones cites in support of his argument, Washington v. Texas, 388 U.S. 14 (1967), is not relevant. Washington stands only for the unremarkable position that compulsory process is a "fundamental element of due process of law. " Id. at 19. Jones was not prevented from subpoenaing Mitchell to testify at his trial, however. In fact, he chose to withdraw his subpoena. Jones instead appears to be arguing for a right to meet with and/or speak to a potential witness prior to the witness testifying. While it is true "[t]he state may not bar a prospective witness from speaking with defense counsel, when and if such witness so desires," Portalatin v. Hernandez, 1989 WL 105981, at *4 (E.D.N.Y. Sept. 7, 1989) (citation omitted), the State did not bar the witness from speaking with anybody. Instead, the trial judge limited the manner in which the contact could occur — in the same way that a trial judge may issue an order of protection in favor of a witness because of Jones' prior harassing behavior towards witnesses. Rather than insisting as he might have that any information be obtained only through the witness' testimony in open court (a scenario that might have played out unfavorably towards Jones if Mitchell had proven adverse), the trial judge provided the number to Jones' attorney-advisor. This went beyond the constitutional requirement that Jones be permitted to subpoena witnesses and thus was permissible.

Of course, the argument that any constitutional right was affected is meritless because Jones himself actually was given the opportunity to speak to Mitchell. (Tr. 2905). That Jones suggests "[a]n in-person interview might have proved different," Reply Brief at 114, does not implicate any right to a fair trial. Nothing prevented Jones from subpoenaing Mitchell had he desired to do so. Accordingly, this claim must be rejected.

M. Ineffective Assistance of Counsel/Lack of Post-Trial Hearing

Jones also claims he received ineffective assistance of counsel because Ramsey failed to move to dismiss the indictment for alleged insufficiencies in the grand jury minutes and based on an improper phrasing of the indictment. Amended Declaration, ¶ 35; see also Reply Brief at 60-61. These grounds are the same as those raised in Jones' second section 440.10 motion. Compare Amended Declaration, ¶¶ 35, 37(N) with Second 440.10 Motion, ¶¶ 6-13, 22. In addition, he complains that Justice Obus improperly refused to grant a post-conviction hearing on this issue and seeks such a hearing in this Court. Amended Declaration, ¶¶ 35, 37(N); Reply Brief at 60-61. The State responds that Jones' contention is procedurally barred and, in any event, meritless. See Resp. Mem. at 116-18.

1. Procedural Default

As noted in Section III.K.1 above, if "a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate procedural rule, federal habeas review of the claims is barred" absent a showing of cause for the default and actual prejudice or a showing that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750. This is so "even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez, 898 F.2d at 9.

Jones filed the second section 440.10 motion to vacate his sentence with Justice Obus on March 8, 2000. See Second 440.10 Motion. In denying that motion, Justice Obus ruled that "[i]nsofar as the defendant was in a position adequately to raise the grounds or issues underlying the present motion, but did not so do in his earlier filed motion, his application is denied in full." Second 440.10 Decision at 1. Justice Obus cited CPL § 440.10(3)(c), which provides that a court may deny a motion to vacate a judgment when "[u]pon a previous motion made pursuant to this section, the defendant was in a position adequately to raise the ground or issue underlying the present motion but did not do so." This ruling represents the "the last state court rendering a judgment in the case," Harris, 489 U.S. at 262, inasmuch as the Appellate Division denied Jones' application for leave to appeal. People v. Jones, 2000 N.Y. App. Div. LEXIS 10293. Justice Obus was correct in his ruling as there is no reason why Jones' argument regarding the dismissal of the indictment claims could not have been raised in his first section 440.10 motion, which had been filed three months earlier and long after the acts complained of. Indeed, as Justice Obus noted in an alternative holding, Jones' arguments were raised in a letter sent to the trial court prior to the trial date and once again in his motion under CPL § 30.30. Second 440.10 Decision at 2.

Courts in this Circuit have routinely held that a New York court's reliance on CPL § 440.10(3)(c) constitutes an adequate and independent state ground that precludes federal habeas review. See, e.g., Aguilera v. Walsh, 2001 WL 1231524, at *5 (S.D.N.Y. Oct. 17, 2001); Mercado v. Portuondo, 2001 WL 987926, at *5 (S.D.N. Y. Aug. 29, 2001); Ryan v. Mann, 73 F. Supp.2d 241, 247-48 (E.D.N.Y. 1998), aff'd, 201 F.3d 432 (2d Cir. 1999); Witt v. Walker, 1993 WL 330503, at *4 (S.D.N.Y. Aug. 19, 1993), aff'd, 35 F.3d 553 (2d Cir. 1994). Accordingly, the procedural default relied upon by the state court in denying this motion pursuant to section 440. 10(3)(c) bars any federal habeas review of the claim by this Court unless Jones "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, 489 U.S. at 262 (internal citations and quotations omitted). Jones has not attempted to make any such showing. Indeed, he has not offered any reason or justification for his failure to raise these grounds in his first section 440.10 motion. Thus, this claim must be dismissed as procedurally barred.

2. Merits of the Claim

Even if this Court were to reach the merits of the claim, no habeas relief would be warranted. As noted in Section III.B.2.b above, in order to succeed with an ineffective assistance of counsel claim a petitioner must show that (1) counsel's performance was so "deficient" as to fall "below an objective standard of reasonableness"; and (2) there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 688, 694. Jones has failed to make such a showing here.

Jones maintains that Ramsey should have moved to dismiss the indictment i) based on the propriety of the grand jury proceedings and ii) because it was "duplicitous and defective." Second 440.10 Motion, ¶¶ 6-13. As Justice Obus noted, however, New York State law requires that a motion to dismiss an indictment be filed within forty-five days of arraignment on the indictment — a date that occurred nearly six years before Ramsey was involved with the case. See Second 440.10 Decision at 2; CPL § 255.20(1). As the New York Court of Appeals observed last year,

[t]he time restrictions fixed by CPL 255.20 are not casual. Rather, the deadlines imposed by the statute rest on the strong public policy to further orderly trial procedures and preserve scarce trial resources. . . . Plainly, the Legislature intended that a potentially dispositive motion that could be made by a defendant at the outset of a prosecution should not be delayed until after an unfavorable verdict.

People v. Davidson, 98 N.Y.2d 738, 739 (2002) (internal citations and quotation marks omitted). While a court may nonetheless entertain untimely pre-trial motions where "the defendant could not, with due diligence" have learned of the basis for the motion and/or "in the interest of justice," CPL § 255.20(3), Jones provides no reason to conclude that Ramsey could properly have made a motion that would have satisfied the requirements of the statute. Indeed, the only excuse Jones appears to give for not making the motion earlier was that he was not provided a copy of the indictment prior to trial and thus did not realize it was defective. Second 440.10 Motion, ¶¶ 4, 7-8. As the indictment was available to Jones or his attorney-advisor throughout the case, however, Ramsey's conduct did not fall below an objective standard of reasonableness when he declined to put forth a motion on these grounds. See, e.g., Arena, 180 F.3d at 396 ("Failure to make a meritless argument does not amount to ineffective assistance.").

To the extent Jones argues that the trial court violated his due process rights by not holding a hearing on this issue, no habeas relief is available both because the trial court could not be expected to hold a hearing on a meritless claim and also because "federal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Diaz v. Greiner, 110 F. Supp.2d 225, 235 (S.D.N.Y. 2000) (citation and quotation omitted); see id. at 236 ("Petitioner's unsupported assertion that the trial court denied his (third) CPL § 440.10 motion without a hearing violated due process is not cognizable on federal habeas review."); see e.g., Jones v. Duncan, 162 F. Supp.2d 204, 217-19 (S.D.N.Y. 2001) ("[petitioner's] assertion that the failure to hold a hearing on his CPL § 440.10 . . . motion violated due process is not cognizable on federal habeas review") (citing cases).

N. Other Grounds

Finally, Jones asserts that the Court should examine all of the submitted papers for any other deprivation of constitutional rights as may be found. Amended Declaration, ¶ 37. Such a review is of questionable utility as any complaint about the denial of a constitutional right was required to have been preserved and exhausted in order to qualify for federal habeas review. In any event, the Court is not aware that the record reflects the denial of any federal constitutional right.

By way of reply brief, Jones has attempted to add a claim regarding his gun possession charge. See Reply Brief at 124-26. Jones argues that Justice Obus failed to instruct the jury properly regarding the requirements of possession and that the verdict was against the weight of the evidence. See id. Jones failed to exhaust this claim before the state courts, however, and it is therefore unreviewable. See, e.g., Ramirez, 280 F.3d at 94.

Conclusion

The petition should be denied.

PROCEDURE FOR FILING 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 have ten (10) days from service of this Report to file any 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 extra copies sent to the Honorable Harold Baer, 500 Pearl Street, New York, New York 10007, and to the undersigned at 40 Centre Street, New York, New York 10007. Any requests for an extension of time to file objections must be directed to Judge Baer. If a party fails file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985).