Summary
concluding that the First Department's ruling that the remaining challenges set out in the petitioner's pro se appellate brief were "considered and rejected" represented a "decision on the merits"
Summary of this case from Wade v. FischerOpinion
No. 01 Civ. 9754 (HB)(GWG).
January 24, 2005
OPINION ORDER
Pro se petitioner Charles Jones ("Jones") filed the instant habeas corpus petition pursuant to 28 U.S.C. § 2254. Jones seeks to vacate his New York State convictions for burglary in the second degree and criminal possession of a weapon in the fourth degree. The matter was referred to Magistrate Judge Gabriel W. Gorenstein, who issued a comprehensive Report and Recommendation ("RR") in which he recommended that habeas relief be denied. Jones v. Spitzer, No. 01 Civ. 9754, 2003 WL 1563780 (S.D.N.Y. Mar. 26, 2003) ("Jones RR"). Jones filed timely objections to the RR. For the foregoing reasons, I adopt Magistrate Judge Gorenstein's recommendations and conclude that Jones' petition must be denied. I do this notwithstanding the very troubling fact that the trial court did not appoint Jones counsel for approximately a year and half. This failure is particularly disturbing in light of the fact that Jones' Sixth Amendment rights had already been violated once. Nonetheless, as will be discussed in greater detail below, the denial of counsel — while lengthy and significant — can only be considered harmless error given that Jones did finally enjoy the services of counsel for nearly a year prior to trial, which is certainly longer than most and does not appear to have prejudiced trial preparation.
I. BACKGROUND
Magistrate Judge Gorenstein's RR provides a detailed recitation of the facts and prior proceedings, familiarity with which is presumed.Jones RR, 2003 WL 1563780, at *1-10. I provide here only an overview of the pertinent events in the history of this decade-long litigation. I have, however, detailed Jones' pre-trial appearances insofar as they are discernable from the available transcripts, as they bear substantially on the discussion that follows regarding Jones' Sixth Amendment rights.
In 1994, Jones was convicted after a jury trial in Supreme Court, New York County of burglary in the second degree, criminal possession of stolen property in the fourth degree, and criminal possession of a weapon in the fourth degree and was sentenced to a term of 1½ to 4½ years imprisonment. Jones' conviction arose from his unlawful entry into an apartment rented by Marla Maples ("Maples") and the subsequent possession of various items of Maples' personal property taken from the apartment. During the investigation into Maples' complaint, the police discovered a loaded semi-automatic pistol in Jones' office. On appeal, the Appellate Division, First Department ("the First Department") unanimously affirmed his conviction. People v. Jones, 642 N.Y.S.2d 246 (1st Dep't), leave to appeal denied, 88 N.Y.2d 937 (1996). In 1996, Jones filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, which was granted by Judge Shira A. Scheindlin ("Judge Scheindlin") after she concluded that Jones' Sixth Amendment right to counsel was violated when the trial court prohibited him from communicating with his attorney during a four-day break in Jones' cross-examination. Jones v. Vacco, No. 96 Civ. 4907, 1996 WL 535544, at *1, 3 (S.D.N.Y. Sept. 19, 1996). Judge Scheindlin ordered that Jones be released or given a new trial within 30 days, id. at *3, and the Second Circuit affirmed, Jones v. Vacco, 126 F.3d 408 (2d Cir. 1997).
In October 1996, during the pendency of the State's appeal of Judge Scheindlin's opinion, Jones' re-trial began in Supreme Court, New York County before Justice Carole Berkman ("Justice Berkman"). On October 3, 1996, Jonathan Oberman ("Oberman") appeared on behalf of Jones to make a bail application. The matter was put over until October 16, 1996, at which time Oberman was again present. Oberman informed the Court that he was not retained, but was only there to "give effect to the Federal judge's decision on the habeas petition." 10/16/96 Tr. at 2:17-21. Justice Berkman, however, told Oberman that she would not accept his "limited notice of appearance" and cut short his arguments with respect to the date of Jones' release pursuant to the writ. Justice Berkman refused Oberman's request to either appoint Jones a legal advisor from the 18-B panel or make any examination of Jones regarding his decision to proceed pro se. Justice Berkman responded that she would "save that inquiry until [she] ha[d] more time." Id. at 6:8-10. She did, however, listen at length to arguments from the State, which asserted both that Jones was guilty of the crimes for which he was convicted (notwithstanding the grant ofhabeas relief), that he was a danger to Maples, and that he had significant assets, which consisted of a valuable home in the state of Connecticut. The State did not, however, inform the court that this house was under Jones' wife's name and was already encumbered by a lien and confession of judgment, which the State sought in order to secure Jones' release on bail during the first trial.
When the case was re-called on October 18, 1996, Justice Berkman again refused to appoint Jones counsel and entered an order of Protection, as a condition of Jones' bail. This order of protection required that Jones stay away from and have no contact or communication with Maples and others and prohibited Jones from being within a two-block radius of, inter alia, 725 Fifth Avenue, the location of Trump Tower. At this appearance, Jones clarified that he had not paid Oberman or Barry Scheck ("Scheck") fees to represent him on his habeas petition. Instead, Oberman and Scheck agreed to accept a small sum that some of Jones' friends gathered on Jones' behalf. Justice Berkman informed Jones that she had no reason to believe that Jones could not retain counsel once again and that until she was convinced otherwise, she would not appoint Jones counsel. There is no indication that Justice Berkman gave Jones any pro se instruction other than to say that, "It is not my understanding . . . that you really wish to proceed to any substantive matters without counsel, in fact, quite the contrary. So I'm not even going to bother at this point discussing with you what a terrible idea that is." 10/18/96 Tr. at 5:3-11. Jones then proceeded to argue against entry of the order of protection, and in particular, the restriction on his travel within two blocks of the West 57th Street vicinity because of its interference with his business activities and his ability to visit his dentist, whose office was in that area. Strangely, taking the whole transcript into consideration, Justice Berkman suggested that he discuss these matters with Oberman and indicated she would sign the order of protection as written.
The other individuals were Donna Trump, Tiffany Trump, and Jane Elder.
On November 15, 1996, Berkman again refused to appoint counsel after she emphasized the fact that Jones had retained counsel in all prior proceedings. Jones renewed his request that the Court modify the provisions of the order of protection so that he could seek treatment at his dentist and conduct business activities in the proscribed area. According to Jones, he also appeared before Justice Berkman without counsel on December 11 and 18, 1996. On December 11, 1996, Jones attempted to move to amend the order of protection, but was instructed by the court that he should follow the established procedure for motion practice. The court set the briefing schedule (with December 18, 1996 as the return date) and indicated that a decision would be rendered by January 22, 1997.
On January 22, 1997, the State informed Justice Berkman that the Second Circuit had appointed Barry Scheck as Jones' appellate counsel. Justice Berkman requested a copy of the submissions relating to that appointment of counsel, but nevertheless, stood by her order of this same date in which she denied Jones' request for counsel. The order noted that Jones had made only conclusory claims of indigence, which she found to be contradicted by the value of real estate he owned in New York City and Connecticut, and the fact that he had previously been represented by retained counsel in connection with his first trial, appeal, and firsthabeas petition.
Jones provided the Court with a copy of the letter from the Second Circuit that confirms this appointment. Letter from Jones to the Court (undated, received April 23, 2003) and unpaginated attachments (Jones 4/23/04 Letter).
Thereafter, according to Jones, he made several additional pre-trial appearances pro se on April 9, 1997, June 25, 1997, September 9, 1997, and October 8, 1997 before Justice Berkman. On October 8, 1997 (his last appearance before Justice Berkman), Jones informed the court that he had a pending motion to First Department to compel the appointment of counsel. Justice Berkman responded, "I already told you, get a lawyer. The First Department orders an assignment of counsel when you are living in a million dollar house up in Connecticut, not my responsibility . . . Sir, file the motion. File it. I won't be here. Some judge with a completely open mind can decide." 10/8/97 Tr. at 4:19-5:5, 5:15-18. Jones also mentioned that he wanted to make motions under the speedy trial act and for a new suppression hearing, to which Justice Berkman stated:
Jones contends that the State has not provided transcripts of all relevant pre-trial proceedings, which he argues precluded the Court from fully assessing his requests for the appointment of counsel and the prejudice he contends resulted from the delay in appointment. In his July 17, 2002 Memorandum Endorsement, Magistrate Judge Gorenstein denied Jones' request for an order directing the State to provide him with transcript of all pre-trial appearances "where important issues were discussed that are relevant and material" to instant habeas petition. Docket # 22. Nonetheless, the State provided Jones with all of the transcripts in its possession, copies of which this Court requested and received to assist in the review of Jones' petition and objections.
THE COURT: . . . If you want to make motions, Mr. Jones, I would suggest that you make them.
THE DEFENDANT: I am not represented by an attorney, so —
THE COURT: Mr. Jones, I am sorry. Please, I have already told you about five million times, my information, which is better than the information the Second Circuit had when they assigned counsel to you, is that you live in a very expensive house which, as you told me, is in your wife's name, and my information, and I gave you under the case citations a long time ago, under the case law in this state a lawyer for a criminal case is what is called a necessity. So I am not asking the tax payers of this state to pay for a lawyer while you are living in a million dollar house. There you go. If the Appellate Division thinks I'm incorrect, they will order the contrary. I take no position in that regard other than what I have said already.Id. at 6:10-7:11.
Although Justice Berkman had apparently decided that Jones was financially able to afford counsel, at no point during the year she presided over his case — insofar as the available transcripts reflect — did she inquire into either his ability to pay for counsel or his waiver of counsel, despite Jones' repeated protestations, requests, and contrary factual representations. While such conduct cannot be condoned it is well for the reader to understand that the hectic pace and overwhelming calendars may be a contributing factor to the multiple oversights.
Transcripts are available for the appearances on 10/3/1996, 10/16/1996, 10/18/1996, 11/15/1996, 12/18/1996, 1/22/1996, 10/8/1997, 11/5/1997, and 3/4/1998.
The writer served on the New York Supreme Court from 1983 to 1992 and on occasion sat in a Part similar to Part 51 where most of the appearances by Jones occurred.
The case was subsequently transferred to Justice Michael J. Obus ("Justice Obus"), before whom Jones appeared, again pro se, on November 5 and 14, 1997, December 12, 1997, January 21, 1998, and March 4, 1998. On November 5, 1997, Justice Obus initially abstained from resolving the counsel appointment issue because Jones informed him that he had filed an Article 78 proceeding against Justice Berkman and Robert Morgenthau ("Morgenthau") to compel the appointment of counsel, which was sub judice in the First Department. A review of the documents submitted in connection with this habeas petition indicates that, in actuality, Jones filed a petition pursuant to N.Y.C.P.L.R. § 1101 for leave to prosecute his Article 78 proceedings as a poor person, which would include exemption from the subpoena fee, the waiver of certain filing fees, and related relief. Morgenthau's office opposed Jones' N.Y.C.P.L.R. § 1101 petition on the grounds that "[t]here are indications that petitioner is not indigent," which appear to be based solely on the fact that "petitioner owns a house, in his wife's name, that has been appraised at a value of $500,000." Am. Pet. Ex. K (ADA Kleinbart Aff. in Opp.) On November 18, 1997, the First Department denied Jones' N.Y.C.P.L.R. § 1101 motion, Jones v. Berkman, M-5643, Ind. No. 3108/93 (1st Dep't Nov. 18, 1997), and as a consequence, Jones never filed his Article 78 proceeding to compel the appointment of counsel. Nevertheless, according to Jones, he provided Justices Berkman and Obus with copies of his Article 78 submissions. Jones asserts that his Article 78 materials included, inter alia, financial disclosures, a copy of the Second Circuit Order appointing him appellate counsel, and an affirmation from Nancy Collins ("Collins"), an attorney at the Legal Aid Society's Criminal Defense Division, who was assigned to represent Jones in another criminal matter on October 6, 1995 by Order of the New York County Criminal Court. Specifically, Collins affirmed that the Legal Aid Society represented Jones in that matter until it was dismissed and sealed on February 11, 1997 and that "[t]hroughout the course of [her] representation of Jones, several judges made inquiries into his financial eligibility for a court-appointed attorney and were satisfied that [he] was financially eligible." Jones 4/23/03 Letter, unpaginated attachment.
Although there is no indication that Justice Obus inquired into Jones' decision to proceed pro se to determine if that decision was knowing and voluntary, Jones has not specifically raised this issue with respect to Justice Obus.
N.Y.C.P.L.R. § 1101 provides, in pertinent part, that "[u]pon motion of any person, the court in which an action is triable, or to which an appeal has been or will be taken, may grant permission to proceed as a poor person . . . The moving party shall file an affidavit setting forth the amount and sources of his . . . income and listing his . . . property with its value; that he . . . is unable to pay the costs, fees and expenses necessary to prosecute or defend the action or to maintain or respond to the appeal; the nature of the action; sufficient facts so that the merit of the contentions can be ascertained; and whether any other person is beneficially interested in any recovery sought and, if so, whether every such person is unable to pay such costs, fees and expenses." N.Y.C.P.L.R. § 1102 provides, inter alia, that a litigant granted poor person relief pursuant to § 1101 is not required to pay filing fees or costs or for stenographic transcripts, and may, in the Court's discretion, be appointed counsel.
Jones provided the Court with a copy of this affirmation. Jones 4/23/04 Letter.
In his continuing effort to secure counsel, Jones moved to dismiss the Indictment on February 2, 1998 and argued, inter alia, that he was denied assistance of counsel. Jones appended a financial statement to his notice of motion, as well as a copy of the Second Circuit order and the Collins affirmation. Ultimately, in his April 29, 1998 Decision and Order, Justice Obus ordered an evidentiary hearing to determine whether Jones was eligible for appointed counsel. People v. Jones, Ind. No. 3108/93, at *5 (Sup.Ct. April 29, 1998). Justice Obus based his ruling on "People v. McKiernan, 84 N.Y.2d 915 (1994), in which the Court of Appeals held that the trial court had an obligation to inquire further into the defendant's eligibility to receive representation without charge once the defendant disputed the assertion that he had failed to provide requisite verification . . .," id. Following the evidentiary hearing, Justice Obus appointed Harold Ramsey as Jones' attorney. In total, Jones was without counsel from October 1996 until May 1998 — a period of over 1½ years.
On March 26, 1999, the week before his second trial was scheduled to begin, Jones indicated he wanted to proceed pro se because he believed his attorney had not sufficiently prepared for trial. Justice Obus granted his request on April 1, 1999, but ordered Ramsey to act as Jones' attorney-advisor and denied Jones' request for a continuance. The charges filed in the second trial were identical to those filed in the first trial. The thrust of Jones' defense on the burglary and possession of stolen property charges was that he had permission to enter Ms. Maples' apartment and to take the items later found in his possession. He also asserted that the weapon recovered was neither his nor operable. On May 5, 1999, a jury convicted Jones of burglary in the second-degree and criminal possession of a weapon, but acquitted him of criminal possession of stolen property in the fourth degree. On June 11, 1999 Justice Obus sentenced Jones to 1½ to 4½ years in prison for the burglary count and to time served for the weapon possession count. On the same date Justice Obus denied Jones motion to set aside the verdict.
Following sentencing, Jones filed a plethora of post-trial motions and petitions in which he sought to be released on bail pending execution of his sentence, to vacate his conviction, and appeal his conviction. In March 2001, the First Department affirmed Jones' conviction. People v. Jones, 722 N.Y.S.2d 138 (1st Dep't 2001), leave to appeal denied, 96 N.Y.2d 831 (2001). On November 6, 2001, Jones filed the instant habeas motion pursuant to 28 U.S.C. § 2254. On November 29, 2001, Jones filed an amended petition, in which he challenged his conviction on sixteen different grounds. The matter was referred to Magistrate Judge Gorenstein, who issued an initial RR, in which he recommended that Jones' ineffective assistance of counsel claim be dismissed for failure to exhaust state court remedies and that the remainder of Jones' petition be stayed pending resolution of that claim. Jones thereafter withdrew his ineffective assistance of counsel claim and Magistrate Judge Gorenstein issued a second RR that addressed Jones' fifteen remaining claims and concluded that Jones' petition should be denied. Jones filed timely objections.
Jones' application to the First Department for bail was denied, as was his motion for reconsideration and appeal to the Court of Appeals. Jones then filed a habeas petition in the Southern District of New York, in which he challenged the First Department's denial of bail, claiming that Justice Andrias, who presided over the first trial and was subsequently elevated to the First Department, had caused the entire First Department to become biased against him. Jones' habeas petition was denied, Jones v. O'Keefe, No. 99 Civ. 12279, 2000 WL 1290595 (S.D.N.Y. Sept. 12, 2000), as was his motion for reconsideration, Jones v. O'Keefe, No. 99 Civ. 12279, 2000 WL 1804153 (S.D.N.Y. Dec. 7, 2000), and petition for a writ of mandamus from the Second Circuit, id. at *1. Jones also moved for Judge Casey's recusal because of the alleged delay in deciding his petition. Id. at *4. Judge Casey denied Jones' motion for recusal because Jones was unable to allege any particularized bias.
Petitioner filed two pro se motions pursuant to N.Y.C.P.L. § 440.10 to vacate the judgment or in the alternative, for an evidentiary hearing. In his first § 440.10 motion, Jones claimed: (1) newly discovered evidence created the possibility that the verdict would have been favorable to him; (2) the prosecution knowingly presented false material evidence; and (3) that prejudicial conduct occurred at trial that did not appear in the record and would have required reversal on direct appeal. While this motion was pending, Jones filed a second § 440.10 motion, in which he claimed that prejudicial conduct occurred at trial and that he was denied his right to effective assistance of counsel. Justice Obus denied both motions as procedurally barred and without merit. Petitioner's applications for leave to appeal and reargument were rejected. People v. Jones, No. M-4297, 2000 N.Y. App. Div. LEXIS 10294 (1st Dep't Oct. 3, 2000).
Finally, Jones appealed his conviction to the First Department, who appointed Steven Feldman as appellate counsel. Feldman filed an appellate brief in which he challenged Justice Obus' decision to permit a juror to continue to serve after questions were raised about his impartiality. Jones moved pro se to strike Feldman's brief and for an order directing Feldman to file a new brief, or alternatively, for permission to file apro se appellate brief. After the First Department denied his request, petitioner moved for reconsideration and submitted a supplemental pro se brief in which he raised fourteen additional points of error. Nevertheless, the First Department affirmed Jones' conviction, People v. Jones, 722 N.Y.S.2d 138 (1st Dep't 2001), and the Court of Appeals denied leave to appeal, People v. Jones, 96 N.Y.2d 831 (2001), and reconsideration, People v. Jones, 96 N.Y.2d 903 (2001).
Although Jones is no longer incarcerated, his habeas petition is not moot because he is subject to civil disabilities associated with his felony conviction of burglary in the second degree. N.Y. Penal Law § 140.25; Sibron v. New York, 392 U.S. 40, 54-56 (1968) (holding that the release of a prisoner does not foreclose review of his conviction because he is presumed to be subject to civil disabilities under state or federal law as a result of the conviction).
Jones was granted an extension of time until April 18, 2003 to file his objections to the RR.
II. DISCUSSION
A. Standard of Review1. RR
This Court reviews an RR for clear error, but reviews de novo those portions of the RR to which a petitioner interposes an objection. 28 U.S.C § 636(b)(1); Fed.R.Civ.P. 72(b). Here, Jones raised objections to twelve of Magistrate Judge Gorenstein's fourteen findings, which I review de novo. 2. Habeas Corpus
Petitioner also raised a "general objection" because of Magistrate Judge Gorenstein's alleged partiality, misstatement of facts, and refusal to require the State to produce the purportedly missing transcripts.
I begin with the premise that, in conducting a habeas review, federal courts are limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). As a pre-requisite to federalhabeas relief, the petitioner must have exhausted his claims at the state level unless "it appears that . . . circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1)(B)(ii). In this case, as is evident from the previous review of the extensive history of this case, Jones properly and fully exhausted his remedies in state court with one lone exception: Jones did not appraise the state courts of his arguments (raised in his reply papers) regarding the jury instructions and sufficiency of the evidence as to his criminal possession of a weapon charge. A review of his prior submissions to the state courts reveal that Jones more than satisfied his burden to fairly present the factual and legal premises of his claims and alert the court to their constitutional nature. Williams v. Walsh, No. 02 Civ. 7633 (HB), 2004 WL 2754859, at *2 (S.D.N.Y. Dec. 1, 2004). Indeed, Jones presented cogent arguments and legal authority to support his claims. He has therefore fully exhausted his claims other than those previously noted.
This principle has particular relevance in this case because the New York constitution also guarantees the right to counsel. Indeed, the right to counsel under New York law, which dates back as early as 1777, developed independently from the federal right and is broader in scope.People v. Settles, 46 N.Y.2d 154, 160-61 (1978); see also People v. Witenski, 15 N.Y.2d 392, 396-97 (1965). The later enacted state legislation with respect to the appointment of counsel is "merely cumulative" and exists only "to facilitate and implement the court's exercise of its inherent power." Stream v. Beisheim, 311 N.Y.S.2d 542, 547 (2d Dep't 1970) (noting that the statutes are meant only to "provide a constant, ready source of available counsel; to define the amount and source of their compensation, and the manner of payment"). In the discussion that follows, I will, as I must, focus on Jones' right to counsel as defined under federal law.
Title 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act, Pub.L. No. 104-132, Title 1, § 104, 110 Stat. 1214 (1996) ("AEDPA"), requires a federal court reviewing habeas claims to defer to the State court's decision on the merits. A state court decision "on the merits" is one that disposes of a claim on substantive rather than procedural grounds. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). To be considered a decision "on the merits," the state court does not need to explain its reasoning or refer explicitly to the federal claim or relevant federal case law. Id. Instead, it must simply "reduce the disposition to judgment." Id. at 312. Here, the First Department specifically discussed the juror bias claim Jones' appellate counsel raised and further ruled that the remaining challenges set out in Jones' supplemental pro se appellate brief were "considered and rejected."Jones, 722 N.Y.S.2d at 139. This constitutes a decision "on the merits."E.g., Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) (holding that the Appellate Division's conclusion that petitioner's claim was "without merit" constituted a decision on the merits). Thus, Jones' claims are subject to AEDPA's deferential standard of review.
Under this standard, federal habeas corpus relief for petitioners convicted in state court proceedings may be granted only if the state court's adjudication was "contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state court's determination will be deemed "contrary to" established Federal law only if the state court: (1) applied a rule different from the governing law set forth by the Supreme Court; or (2) decided a case differently than the Supreme Court on a set of materially indistinguishable facts. William v. Taylor, 529 U.S. 362, 404-5 (2000). The state court determination is an "unreasonable application" of federal law if the state court correctly identified the governing principle from Supreme Court decisions but unreasonably applied that principle to the facts of the case. Id. at 407-8. The focus of the "unreasonable" clause is not whether the State court incorrectly applied the facts, but whether the court's application of clearly established federal law is objectively unreasonable.
Additionally, in a habeas corpus proceeding, "a determination of a factual issue made by a state court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). The petitioner bears the burden of rebutting this presumption by clear and convincing evidence. Id. Therefore, this Court "presumes that the factual findings of the New York courts are correct and will not set aside those findings unless 'the material facts were not adequately developed at the State court hearing' or the Court's factual determinations are not fairly supported by the record." Bohan v. Kuhlmann, 234 F. Supp. 2d 231, 243 (S.D.N.Y. 2000), aff'd, 66 Fed. Appx. 277 (2d Cir. 2003), (citing Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999)).
While AEDPA has severely limited the scope of habeas review, AEDPA "deference does not imply abandonment or abdication of judicial review. Deference does not by definition preclude relief." Miller-El v. Cockrell, 537 U.S. 322, 324 (2003); Gutierrez v. McGinnis, 389 F.3d 300, 307 (2d Cir. 2004) ("what we have frequently labeled AEDPA deference is by no means blind obedience"). With this is mind, I turn to Jones' claims.
B. Overview of Jones' Objections
As noted, Jones has raised a significant number of objections to the RR. Aside from the so-called "general objection," these arguments are identical to the claims raised in his habeas petition, which are without merit. I have carefully reviewed Magistrate Judge Gorenstein's recommendations de novo and I concur with his conclusion that none of Jones' arguments (save one) are well founded. In brief, there was simply no error (1) in the trial court's denial of Jones' request for a continuance on the eve of trial because of Jones' belated decision to represent himself pro se; (2) in the trial court's refusal to discharge a frustrated juror who upon two separate examinations maintained he could be impartial; (3) with respect to the sufficiency of the evidence for Jones' burglary conviction because the evidence (when viewed in the light most favorable to the prosecution) established the essential elements of the crime beyond a reasonable doubt and the prosecution had no obligation to refute every alternative hypothesis; (4) in the trial court's decision to curtail Jones' cross-examination of Maples after he had been given more than ample time and latitude in his examination or with the trial court's comportment with respect to Jones' conduct of the examination; (5) with respect to the prosecutor's comments that Jones could not testify during his examination and argument or regarding prior bad acts which were the subject of a curative instruction, as they did not infect the trial with unfairness; (6) in the admission of Maples' shoes into evidence because they were non-fungible goods not subject to the chain of custody requirement; (7) with the jury instructions because Jones had not rebutted with clear and convincing evidence the trial court's factual determination that the purportedly missing witnesses were not within the control of either party and the trial court properly charged the elements of the burglary charge; (8) with the trial court's comments regarding Jones' conduct of his defense, as they were largely innocuous and the result of passing frustration and in no way rise to the level of a due process violation; or (9) with regard to Jones' right to a speedy trial because the delay was not due to the conduct of the state, but rather Jones' motion practice and the trial court's abdication of its duty to inquire into Jones' financial status. However, I part company with Magistrate Judge Gorenstein on the issue of the state court's failure to appoint counsel or hold an evidentiary hearing. While I ultimately agree with him that habeas relief does not lie, had the defendant's constitutionally guaranteed right to counsel been deprived for just a little longer, habeas relief would have been granted. Consequently, this string to the Jones bow is explored in some detail.
Jones has objected to: (1) failure to appoint counsel; (2) denial of continuance/constructive denial of counsel; (3) juror bias; (4) insufficiency of the evidence; (5) curtailment of cross-examination; (6) prosecutorial misconduct; (7) chain of custody; (8) erroneous jury instructions; (9) interference with pro se representation; (10) speedy trial violation; (11) interference with the right to call witnesses; (12) exhaustion of the claims related to the weapon charge; and, finally, (13) the previously noted "general objection" to the entire report.
C. Failure to Appoint Counsel
1. Sixth Amendment Counsel Clause
In his first objection, Jones argues that the trial court's failure to appoint him counsel violated his Sixth Amendment rights. "The Sixth Amendment commands that '[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.' U.S. Const. amend. VI. This right to counsel applies to the States through the Fourteenth Amendment." Lainfiesta v. Artuz, 253 F.3d 151, 154 (2d Cir. 2001). The right to counsel encompasses two related rights, both of which are at issue in this case — the right to be appointed counsel, Gideon v. Wainwright, 372 U.S. 335, 344 (1963) ("any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him"), and "right to dispense with a lawyer's help," Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942); Faretta v. California, 422 U.S. 806, 819 (1975) (holding that "the right to self-representation — to make one's own defense personally — is . . . necessarily implied by the structure of the [ Sixth] Amendment"). The Second Circuit has held that while a defendant's waiver of counsel must be knowing and intelligent, id. at 835, the Constitution does not require that the court "expressly warn [the defendant] of the dangers and disadvantages of self-representation."Dallio v. Spitzer, 343 F.3d 553, 561 (2d Cir. 2003), cert. denied, 124 S.Ct. 1713 (2004); but see id. at 567 (Katzmann, C.J., concurring) (opining that Faretta clearly established that to find a waiver of counsel valid "there must be some basis in the record . . . to conclude that the defendant was aware of the adverse consequences of proceedingpro se"); United States v. Edwards, 716 F.2d 822, 824 (11th Cir. 1983);United States v. Welty, 674 F.2d 185, 193 (3d Cir. 1982); United States v. Chaney, 662 F.2d 1148, 1152 (5th Cir. Unit B 1981).
The New York Court of Appeals has also interpreted Faretta as requiring a "sufficiently 'searching inquiry' of the defendant to be reasonably certain that the 'dangers and disadvantages' of giving up the fundamental right to counsel have been impressed upon the defendant."People v. Sawyer, 57 N.Y.2d 12, 21 (1982).
Thus, with respect to the Sixth Amendment counsel clause, the trial court has the duty to ensure that: (1) a defendant has counsel and (2) a defendant who chooses to forgo this right has done so knowingly and voluntarily. One easily accomplished method is to order and hold an evidentiary hearing. Here, the trial court failed Jones on both scores. After having deprived Jones of his Sixth Amendment rights in his first trial, the state court once again failed to provide Jones the constitutional protection to which he was entitled. From his very first appearance, Jones requested that he be appointed counsel because he could not afford representation. This request triggered an obligation of the trial court to inquire into Jones' financial ability to secure counsel and, if necessary, appoint counsel to represent him. It is clearly established federal law that "[t]he constitutional right of an accused to be represented by counsel invokes, of itself, the protection of a trial court . . . This protecting duty imposes the serious and weighty responsibility upon the trial judge of determining whether there is an intelligent and competent waiver by the accused." Carnley v. Cochran, 369 U.S. 506, 514-15 (1962);Wood v. United States, 389 U.S. 20, 21 (1967) (vacating judgment and remanding because there was inadequate "inquiry into the question of petitioner's financial ability to retain counsel"); see also Brewer v. Williams, 430 U.S. 387, 404 (1977) ("the right to counsel does not depend upon a request by the defendant, and that courts indulge in every reasonable presumption against waiver").
Indeed, the Circuit Courts of Appeal have repeatedly interpreted Supreme Court precedent as requiring that "[w]hen a criminal defendant notifies the court that he is unable to retain counsel, the court has a duty to make further inquiry into the defendant's financial condition to ascertain whether he is entitled to have counsel appointed to represent him." United States v. Martin-Trigona, 684 F.2d 485, 490 (7th Cir. 1982) (reversing conviction on this ground); United States v. Harris, 707 F.2d 653, 662 (2d Cir. 1983) (noting that it would violate a defendant's Sixth Amendment rights to force him to go to trial pro se where the "court fails to conduct an appropriate inquiry into a defendant's financial ability to afford counsel"); accord United States v. Gravatt, 868 F.2d 585, 588 (3d Cir. 1989); United States v. Wadsworth, 830 F.2d 1500, 1503 (9th Cir. 1987); United States v. Harlan, 696 F.2d 5, 6 (1st Cir. 1982); United States v. Cohen, 419 F.2d 1124, 1127 (8th Cir. 1969). Further, this obligation is codified in the Criminal Justice Act, which provides, in pertinent part, that "[u]nless the person waives representation by counsel, the United States magistrate judge or the court, if satisfied after appropriate inquiry that the person is financially unable to obtain counsel, shall appoint counsel to represent him." 18 U.S.C. § 3006A(b) (emphasis supplied). While this statute is federal and therefore not binding upon the states, it is nevertheless instructive as its purpose "is to provide for appointed counsel whenever required by the constitution." Knaubert v. Goldsmith, 791 F.2d 722, 728 (9th Cir. 1986). 2. Violation of Jones' Sixth Amendment Rights
Notably, this same duty of inquiry exists under New York law.People v. McKiernan, 84 N.Y.2d 915, 916 (1994) (reversing the defendant's conviction because the "[t]he court did not make a sufficient inquiry into the defendant's ability to engage a lawyer").
Justice Berkman failed to explore Jones' ability to pay for counsel. Instead, she relied solely on the fact that Jones had previously been represented by retained counsel and the State's assertions that he owned valuable real estate in Connecticut. It is beyond peradventure that legal expenses for one trial may make payment of counsel fees in a second trial beyond a defendant's means. While Jones' assertions regarding his financial status were at first conclusory, on January 22, 1997, Justice Berkman learned that the Second Circuit appointed Jones appellate counsel and on that same day, she requested a copy of Jones' submissions to the Second Circuit. According to Jones, he also provided Justice Berkman with a copy of his Article 78 papers, which included, inter alia, financial disclosures, a copy of the Second Circuit order, and an affirmation of another attorney who had been assigned to represent Jones in another criminal matter pending in the same court, all of which, at the very least, raised a question of fact that Justice Berkman was obligated to explore. Instead, Justice Berkman — who acknowledged at the October 8, 1997 appearance that she did not have an open mind on issue of Jones' ability to pay for a lawyer — apparently disregarded this information and steadfastly maintained that Jones did not qualify for appointed counsel.
Justice Berkman's failure was two-fold: (1) her determination of facts was unreasonable; and (2) her refusal to examine Jones' financial status was "contrary to" clearly established federal law and objectively unreasonable. In his petition and supplemental materials, Jones has presented clear and convincing evidence to rebut her factual determination that he was not entitled to appointed counsel, something that Justice Obus concluded following an evidentiary hearing on the matter in April 1998. Jones submissions include those documents already noted, as well as an affidavit from Jones submitted in connection with his motion to proceed in forma pauperis on his first appeal, a letter from Jones' accountant, and a financial statement. This Court can only presume that these materials would have also been available to Justice Berkman had she explored this topic further.
Further, Justice Berkman also apparently held Jones to a standard of complete destitution, which is not the law. Instead, as set out in 18 U.S.C. § 3006A(b), the only requirement is that the defendant be "financially unable to obtain counsel." (emphasis supplied). See also Harris, 707 F.2d at 660 (2d Cir. 1983) (ruling that the standard set out in § 3006A(b) "means something less than indigency or destitution") (citing Criminal Justice Act of 1963: Hearings on S.63 and S. 1057 Before the Senate Comm. on the Judiciary, 88th Cong., 1st Sess. 11 (1963) (statement of Attorney General Robert F. Kennedy) ("S. 1057 studiously avoids the term 'indigent.' Instead, it adopts the test of financial inability to secure a necessary part of adequate representation."). Though this was a state case, the right at issue is federal and thus "[t]he standard of indigency is necessarily a federal one." Barry v. Brower, 864 F.2d 294, 299 (3d Cir. 1988) (holding that the defendant was financially unable to secure counsel notwithstanding his equity interest in the family residence, which could not be timely liquidated). Moreover, "doubts as to eligibility should be resolved in a defendant's favor," though the defendant ultimately bears the burden of proof to rebut any evidence of ineligibility for appointed counsel. Id. at 660, 661. Jones attempted to do this, but his requests, arguments, and documentary submissions were unavailing.
The applicable New York statutes also employ the "financially unable" terminology. E.g., N.Y. County Law § 722 (Art. 18-B — Representation of Persons Accused of Crime or Parties Before the Family Court or Surrogate's Court) ("The governing body of each county and . . . city in which a county is wholly contained shall place in operation throughout the county a plan for providing counsel to persons charged with a crime . . . who are financially unable to obtain counsel.") (emphasis supplied).
At Jones' first appearance on October 16, 1996, Justice Berkman said she would save the pro se inquiry until she had more time. Sadly for Jones and the criminal justice system generally, there is no indication that she ever found the time. Instead, she simply admonished Jones to "get a lawyer." 10/8/97 Tr. at 4:24. Certainly "[t]here is no 'talismanic' procedure to follow in determining whether a defendant's waiver was competent and intelligent." Leao v. Phillips, No. 03 Civ. 8638, 2004 WL 1300127, at *7 (S.D.N.Y. June 10, 2004). But here Justice Berkman did not even bother to inquire, perhaps because she herself recognized that there was no valid waiver. 10/18/96 Tr. at 5:3-11 ("It is not my understanding . . . that you really wish to proceed to any substantive matters without counsel, in fact, quite the contrary. So I'm not even going to bother at this point discussing with you what a terrible idea that is."). Nevertheless, she let a year pass without either the appointment of counsel or the examination of Jones' waiver. This was not a circumstance where Jones' conduct was calculated to produce delay. See, e.g., People v. Mitchell, 653 N.Y.S.2d 459, 460 (4th Dep't 1996) (finding no Sixth Amendment violation arising from the trial court's failure to appoint counsel for over a year where the delay was caused by the defendant's repeated assurances that he would retain counsel and his failure to provide materials regarding his financial status). There is simply no explanation for this violation of clearly established federal law.
3. Category of Error
Having concluded that the trial court committed constitutional error, the next question is whether this was a "structural error" that results in per se prejudice or whether it was a "trial error" that is subject to harmless error review. "The Supreme Court has held that there is a narrow class of errors — so-called 'structural errors' — that are so serious that they defy harmless error analysis. A structural error is a 'defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.'" Lainfiesta, 53 F.3d at 157 (citing and quoting Arizona v. Fulminante, 499 U.S. 279, 309-10 (1991)). The cases in which the Supreme Court has found a structural error are few in number and involve an egregious violation of the defendant's rights that undermined the integrity of the proceeding. Fulminante, 499 U.S. at 310. Errors of this magnitude have been found where there was a biased trial judge, complete denial of counsel, denial of self-representation, denial of a public trial, racial discrimination in the selection of the grand jury, and a defective reasonable doubt jury charge. Lainfiesta, 53 F.3d at 157 (collecting cases). While a list such as this provides a useful set of examples, it is important to remember that "the determination whether an error is structural turns not so much on the particular rule violated, as on whether the error was of sufficient consequence that the criminal process cannot reliably serve its function as a vehicle for determination of guilt or innocence." Peck v. United States, 106 F.3d 450, 454 (2d Cir. 1997) (internal quotation marks and citations omitted).
Jones vigorously argues that the denial of counsel for 1½ years was a structural error. I cannot agree. With respect to the violations of the Sixth Amendment counsel clause, the Supreme Court has ruled that a structural error exists where the defendant was actually or constructively denied, prevented from exercising his right to self-representation, or where counsel was prevented from assisting at a "critical stage" of the proceeding. Fulminante, 499 U.S. at 310;Lainfiesta, 53 F.3d at 157; Dallio, 343 F.3d at 568 (Katzmann, C.J., concurring). This Circuit has found that critical stages include a motion to withdraw a guilty plea, Hines v. Miller, 318 F.3d 157, 164 (2d Cir. 2003), cert. denied, 538 U.S. 1040 (2003), jury selection and voir dire,Norde v. Keane, 294 F.3d 401, 413 (2d Cir. 2002), the entry of a guilty plea, United States v. Davis, 239 F.3d 283, 286 (2d Cir. 2001), plea negotiations,Boria v. Keane, 99 F.3d 492, 496-97 (2d Cir. 1996), decision clarified on rehearing by, 90 F.3d 36 (2d Cir. 1996), and sentencing, United States v. Pugliese, 805 F.2d 1117, 1122 (2d Cir. 1986), although these examples are by no means exhaustive.
Here, the trial court's error occurred during a portion of the pre-trial stage. Decisive moments of the pre-trial stage certainly constitute a critical stage in the proceeding. E.g., United States v. Wade, 388 U.S. 218, 236-37 (1967); (post-indictment line-up) Hamilton v. Alabama, 368 U.S. 52, 54-55 (1961) (arraignment). Courts recognize that "certain pretrial proceedings . . . might appropriately be considered parts of the trial itself, when the defendant is confronted, just as at trial, by the procedural system, or by his expert adversary, or by both."United States v. Moody, 206 F.3d 609, 613 (6th Cir. 2000) (internal quotation marks and citation omitted). Indeed, the Supreme Court recognized long ago the importance of the pre-trial stage to the defense. Powell v. Alabama, 287 U.S. 45, 57 (1932) (describing the "the most critical period of the proceedings" as the "the time of their arraignment until the beginning of their trial, when consultation, thorough-going investigation and preparation were vitally important"). In accord with this principle, courts have held that the deprivation of counsel during the entirety of the pre-trial phase was a structural error. E.g., Mitchell v. Mason, 325 F.3d 732, 742 (6th Cir. 2003), cert. denied, ___ S.Ct. ___, No. 03-466, 2005 WL 38959 (Jan. 10, 2005) (affirming habeas relief for a defendant whose trial counsel met with him for six minutes during the seven-month pre-trial period and was subject to a 30-day suspension from practice).
The deprivation here, however, was not as drastic as that present inMitchell, as Jones did eventually receive the services of counsel after Justice Obus conducted an evidentiary hearing and appointed Ramsey in May 1998, eleven months before trial began in April 1999. Moreover, "[a] defendant is not constitutionally entitled to the assistance of counsel in all pre-trial circumstances but only those considered 'critical stages' in the proceedings." Claudio v. Scully, 982 F.2d 798, 802 (2d Cir. 1992). The transcripts reveal that during the time Jones was without counsel, there was no confrontation between him and the State akin to what other courts have found to constitute a critical stage in the proceeding. Instead, an order of protection was entered against him and he engaged in pre-trial motion practice. With this I mean in no way to denigrate the impact of an order of protection with a geographic scope such as that at issue in this case or the level of anxiety Jones must have suffered during the time he was forced to proceed unaided by counsel. But there is simply no basis to assert that the time Jones was without counsel — while certainly lengthy and inexcusable — constituted a critical stage of the proceeding. Thus, I must conclude that the denial of counsel is subject to a harmless error analysis.E.g., Coleman v. Alabama, 399 U.S. 1, 11 (1970) (deciding that harmless error review applied to the deprivation of counsel at a preliminary hearing); Lainfiesta, 253 F.3d at 157 (ruling that a "temporary, arbitrary deprivation of a second attorney of choice" was not a structural error); Brown v. Hoke, No. 87 Civ. 2066, 1987 WL 25887, at *4 (E.D.N.Y. Nov. 18, 1987) (finding that "[u]nlike violations of the right to counsel at trial, pre-trial violations of the right to counsel are subject to harmless error analysis.").
4. Harmless Error
As the Second Circuit has explained, "the applicable harmless error standard for constitutional error differs depending on the procedural posture of the case. On direct review, the applicable standard for reviewing a constitutional error is whether the error 'contribute[d] to the verdict.' Chapman v. California, 386 U.S. 18, 24 (1967). On collateral review, as the Court explained in Brecht, considerations of finality, federalism, and comity warrant the application of a less-onerous harmless error standard[,] 507 U.S. [619,] 635-37 [(1993)] . . ., namely, whether the error "had substantial and injurious effect or influence in determining the jury's verdict." 507 U.S. at 637 (quotingKotteakos v. United States, 328 U.S. [750,] 776 [(1946)]." Peck, 106 F.3d at 454. There has been, as Magistrate Judge Gorenstein noted, some confusion as to whether the Brecht harmless error standard survived the enactment of AEDPA, which compels federal courts to defer to state court decisions when rendered on the merits. The Second Circuit recently clarified its position when it held that "when a state court explicitly conducts harmless error review of a constitutional error, a habeas court must evaluate whether the state unreasonably applied Chapman."Gutierrez, 389 F.3d at 306. Here, the First Department did not engage in a harmless error review of Jones' sixth amendment claims. Instead, it merely ruled that Jones' arguments were "considered and rejected."Jones, 722 N.Y.S.2d 138. It therefore appears that the Brecht analysis applies. See id. at 306 n. 7 (noting that the Supreme Court has appliedBrecht following the passage of AEDPA to a case in which the state court had not engaged in harmless error review). Nevertheless, the error here was harmless under either standard because Jones had the services of counsel for nearly one year before trial. I cannot say that the failure to appoint counsel impacted the course of trial or had an effect upon the jury's ultimate verdict. In sum, the error was not so serious as to undermine confidence in the outcome of the proceeding or overturn a presumptively valid conviction.
III. CONCLUSION
For the foregoing reasons, Jones' 28 U.S.C. § 2254 petition is denied. As Jones has not made "a substantial showing of the denial of a constitutional right," a certificate of appealability will not issue, 28 U.S.C. § 2253(c)(2), and this the Court further certifies that any appeal from this Opinion and Order could not be made in good faith, 28 U.S.C. § 1915(a)(3). The Clerk of the Court is instructed to close this case and remove it from my docket.
IT IS SO ORDERED.