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holding that the fact that the prosecutor's remark is a "reasonable inference" based on properly admitted evidence is a factor that weighs against a finding of prosecutorial misconduct
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00 CV 7622 (JG)
December 8, 2003
MICHAEL LOMBARD, Fishkill Correctional Facility, Beacon, New York, Petitioner Pro Se
CHARLES J. HYNES, ESQ., District Attorney, Ann Bordley, Esq., Assistant District Attorney, Brooklyn, New York, for Respondent
MEMORANDUM AND ORDER
Petitioner Michael Lombard seeks habeas corpus relief from a judgment of conviction entered after a jury trial in state court. I held oral argument by telephone conference on November 14, 2003. For the reasons set forth below, the petition is denied.
BACKGROUND
On April 12, 1995, Lombard, disguised as an Orthodox Jew, went to the predominantly Orthodox Jewish neighborhood of Midwood, Brooklyn, and shot Dr. Marcus Edelstein twice, first in the stomach and then in the back. Edelstein, an opthamologist who had examined Lombard's eyes three years earlier, survived the shooting. In addition to Edelstein, four people witnessed the crime or witnessed Lombard leaving the scene of the crime.Lombard was charged with attempted murder in the second degree, assault in the second degree, and criminal possession of a weapon in the second and third degrees. At trial, Lombard did not deny shooting Edelstein. Instead, he raised an insanity defense, which the jury rejected by finding him guilty of attempted murder in the second degree. On April 16, 1996, Lombard was sentenced to a prison term of 8 1/3 to 25 years.
Lombard appealed from his judgment of conviction to the Appellate Division, Second Department, claiming that (1) his conviction should be reversed because he had proved the insanity defense; (2) the trial court abused its discretion by admitting evidence of a 1973 shooting; and (3) his sentence was excessive. On February 1, 1999, the Appellate Division unanimously affirmed Lombard's judgment of conviction. People v. Lombard, 685 N.Y.S.2d 106 (2d Dep't 1999). The Appellate Division wrote:
Where, as here, conflicting expert testimony is presented, the question of whether or not the defendant suffered from mental disease or defect at the time of the commission of the crime is for the jury, which has the right to accept or reject the opinion of any expert. Absent a serious flaw in the testimony of the People's expert, the jury's finding of sanity will not be disturbed. The jury clearly accepted the testimony of the People's expert that the defendant, despite his mental illness, knew and appreciated the consequences of his actions at the time of the crime and that his actions were wrong. As we discern no serious flaw in the testimony of the People's expert, the jury's finding of sanity will not be disturbed.
By interposing an "insanity defense," the defendant necessarily put in issue relevant aspects of his character and personal history, and required the People, on rebuttal, to prove him sane beyond a reasonable doubt. The court therefore properly ruled that evidence of the defendant's conviction arising from his shooting of his father in 1973 was admissible to show that his motive for the shooting in the case at bar was revenge and that the probative value of the evidence outweighed any potential prejudice.
The defendant's sentence was not excessive.
685 N.Y.S.2d at 107 (citations omitted). Lombard applied for leave to appeal to the Court of Appeals, which was denied on June 25, 1999.People v. Lombard, 93 N.Y.2d 973 (1999) (Levine, J.).
By pro se motion dated May 31, 2000, Lombard moved in the Supreme Court, Kings County, to vacate his judgment of conviction. He claimed that he was deprived of a fair trial because the trial court, the District Attorney's Office, his defense attorney, the Appellate Division, and the Court of Appeals were either part of a conspiracy of Orthodox Jews or were under the influence of Orthodox Jews. As evidence of this theory, Lombard raised in Part B of his motion the following 15 claims: (1) his bail pending trial was excessive; (2) he was improperly remanded prior to trial; (3) the People improperly failed to offer him a plea bargain; (4) the grand jury overcharged him; (5) a police officer lied about the ammunition recovered from him; (6) the prosecutor and two prosecution witnesses lied about the shooting; (7) the prosecutor and an officer lied about his arrest; (8) the court improperly admitted evidence of his 1973 shooting of his father; (9) the trial court committed various errors during trial; (10) Dr. Berger, the government's expert witness, lied in his testimony; (11) Lombard's family was harassed; (12) he received ineffective assistance of counsel; (13) the prosecutor committed various errors during trial; (14) his sentence was excessive; and (15) his sentence was unlawful.
By memorandum and order dated October 4, 2000, the Supreme Court denied the motion. The court held that two of Lombard's claims — that the trial court improperly admitted evidence of Lombard's 1973 shooting of his father, and that his sentence was excessive — were procedurally barred because they were reviewed on direct appeal. People v. Lombard, Indictment No. 4453/95, slip op. at 1 (N.Y.Sup. Ct, Kings County Oct. 4, 2000). The court further held that Lombard's claim about the harassment of his family did not provide a legal basis to vacate a judgment of conviction, and that his claim about the legality of his sentence was meritless. Id. at 2 n. 1. The court found that the remaining 11 claims were procedurally barred pursuant to New York Criminal Procedure Law section 440.10(2)(c) and (3)(a), because those claims could have been raised on direct appeal. Id., at 1-2. The court ruled that in any event, all of the claims were meritless.Id. at 2. Lombard moved for permission to appeal from the Supreme Court's order. On December 1, 2000, the Appellate Division denied that request. People v. Lombard, No. 2000-09957, slip op. at 1 (N.Y.App.Div., 2d Dep't Dec. 1, 2000) (O'Brien, J.).
By pro se petition dated December 1, 2000, Lombard seeks a writ of habeas corpus. In his application, Lombard claims that the trial court, the District Attorney's Office, and his defense attorney engaged in "extreme" misconduct, resulting from pressure brought by the Orthodox Hasidic community.
DISCUSSION
A. The Standard of ReviewThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C. § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "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). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412 (2000): see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts."Williams, 529 U.S. at 413. A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Id. "In other words, a federal court may grant relief when a state court has misapplied a `governing legal principle' to `a set of facts different from those of the case in which the principle was announced.'" Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 1175(2003)).
Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citingWilliams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("Where, . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable.");Wiggins, 123 S.Ct. at 2535 (same). InterpretingWilliams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . ., the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Gilchrist, 260 F.3d at 93 (citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:
For the purposes of AEDPA deference, a state court "adjudicate [s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and Is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
However, "even in the context of federal habeas, deference does not imply abandonment or abdication of judicial review. . . . A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence."Shabazz v. Artuz, 336 F.3d 154, 161 (2d Cir. 2003) (ellipsis in original) (quoting Miller-El v. Cockrell 537 U.S. 322, 123 S.Ct. 1029, 1041 (2003)).
B. Lombard's Claims
1. Selective Prosecution
To support his claim of selective prosecution, Lombard bears the "heavy burden" of making a prima facie showing of "intentional and purposeful discrimination." United States v. Berrios, 501 F.2d 1207, 1211 (2d Cir. 1974): see also United States v. Armstrong, 517 U.S. 456. 465 (1996). Lombard must establish
(1) that, while others similarly situated have not generally been proceeded against because of conduct of the type forming the basis of the charge against him, he has been singled out for prosecution, and (2) that the government's discriminatory selection of him for prosecution has been invidious or in bad faith, i.e., based upon such impermissible considerations as race, religion, or the desire to prevent his exercise of constitutional rights.Berrios, 501 F.2d at 1211: see also Armstrong, 517 U.S. at 463-66. "In the absence of clear evidence to the contrary, courts presume that [prosecutors] have properly discharged their official duties." Id. at 464 (internal quotation marks omitted);see also Id. ("`[S]o long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion."1 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 (1978))). As Lombard must make a "credible showing of different treatment of similarly situated persons," "mere assertions and generalized proffers on information and belief are insufficient." United States v. Sanders, 17 F. Supp.2d 141, 145 (E.D.N.Y. 1998) (citing United States v. Fares, 978 F.2d 52, 59 (2d Cir. 1992)), aff'd, 211 F.3d 711 (2d Cir. 2000).
Lombard does not identify any similarly situated persons (or any persons at all) whom the Kings County District Attorney failed to prosecute for attempted murder. In its brief, the District Attorney states that he "vigorously prosecutes all those who commit attempted murder" (Resp't Mem. Law at 2), and cites numerous cases involving attempted murder prosecutions (id. at 2-3). Further, Lombard provides no evidence that the government's decision to prosecute him was made in bad faith or for an impermissible reason, such as race or religion. Rather, Lombard was prosecuted because he was identified by the victim and others as the shooter. Lombard's claim of selective prosecution is therefore meritless.
2. Procedurally Barred Claims
Ruling on Lombard's section 440 motion, the court found that 11 of his 15 claims were procedurally barred, as he had failed to raise those claims on direct appeal. Those 11 claims were (1) that Lombard's bail pending trial was excessive, (2) that he was improperly remanded prior to trial, (3) that the People improperly failed to offer him a plea bargain, (4) that the grand jury overcharged him, (5) that Officer McDonnell lied about the ammunition recovered from Lombard, (6) that the prosecutor and two prosecution witnesses lied about the shooting, (7) that the prosecutor and Officer McDonnell lied about Lombard's arrest, (8) that the trial court committed various errors during trial, (9) that Dr. Berger lied in his testimony, (10) ineffective assistance of counsel, and (11) that the prosecutor committed various errors during trial.
Federal habeas review of a state prisoner's claim is prohibited if a state court judgment denying the claim is based on an "adequate and independent state ground." Harris v. Reed, 489 U.S. 255, 261 (1992); Levine v. Comm'r of Corr. Servs., 44 F.3d 121, 126 (2d. Cir. 1995). A procedural default in state court is an adequate and independent ground barring federal habeas review. Coleman v. Thompson, 501 U.S. 722, 744, 750 (1991) (noting the state's interest in "channeling the resolution of claims to the most appropriate forum, in finality, and in having the opportunity to correct [its] own errors");see also Lee v. Kemna, 534 U.S. 362, 376, 381 (2002) (noting the existence of a "small category" of "exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate to stop consideration of a federal question").
A defaulted claim will be considered by the court upon a showing of cause and prejudice. See Coleman, 501 U.S. at 750; Teague v. Lane, 489 U.S. 288, 298 (1989). A petitioner may establish cause by showing "`that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable.'" Coleman, 501 U.S. at 753 (ellipses in original) (internal quotation marks omitted) (quoting Murray v. Carrier, 477 U.S. 478, 492 (1986)). To satisfy the prejudice requirement, the alleged error must have worked to the petitioner's "actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir. 2003) (internal quotation marks omitted). If the petitioner cannot show cause, the failure to raise the claim in an earlier petition may nonetheless be excused if he or she can show that a fundamental miscarriage of justice would result from a failure to entertain the claim, i.e., "that he is actually innocent of the crime for which he has been convicted."Dunham v. Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citingSchlup v. Delo, 513 U.S. 298, 321 (1995)).
Lombard offers no explanation as to why he could not have raised these claims on direct appeal. Furthermore, even if he had been prevented in some manner from doing so, it would still be necessary to demonstrate that he suffered an "actual and substantial disadvantage" to his case or that a fundamental miscarriage of justice resulted. Lombard offers no basis for drawing either conclusion. Furthermore, the fact that the state court also rejected these 11 claims on the merits does not help Lombard. Where, as here, a state court also rejects procedurally barred claims on the merits as an alternative holding, a federal habeas court may not review them. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989):Glenn v. Bartlett, 98 F.3d 721. 724 (2d Cir. 1996). In any event, even if I could review the 11 claims on the merits, they would have to be rejected, as discussed below.
3. Bail and Remand Prior to Trial
Lombard claims that his bail was excessive, and that he was improperly remanded prior to trial. Because Lombard has been convicted, however, these issues are moot. See Flanagan v. United States, 465 U.S. 259, 266 (1984) ("An order denying a motion to reduce bail . . . becomes moot if review awaits conviction and sentence."); United States v. Helmsley, 864 F.2d 266, 269 (2d Cir. 1988) (same).
4. The Government's Failure to Offer a Plea Bargain
Lombard alleges that the prosecutor improperly failed to offer him a plea bargain. However, "there is no constitutional right to plea bargain; the prosecutor need not do so if he prefers to go to trial."Weatherford v. Bursey, 429 U.S. 545, 561 (1977). Therefore, because this claim does not involve a "violation of the Constitution or laws or treaties of the United States," 28 U.S.C. § 2241(c)(3);see also Estelle v. McGuire, 502 U.S. 62, 68 (1991) ("In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States."), it provides no basis for habeas relief.
5. The Charges in the Indictment
Lombard's claim that he was overcharged by the grand jury is not reviewable by this Court. "[C]laims of deficiencies in state grand jury proceedings are generally not cognizable in a habeas corpus proceeding in federal court because any deficiencies have been rendered harmless by conviction at trial by a petit jury assessing petitioner's guilt under a heightened standard of proof." Harris v. Artuz, No. 97-CV-2135, 2003 U.S. Dist. LEXIS 16941, at *33 (E.D.N.Y. Aug. 26, 2003) (citingLopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989)). As that general rule applies in this case, where Lombard was convicted after trial, habeas relief on this claim is not warranted.
6. The Admission of Evidence That Lombard Shot His Father in 1973
Lombard claims that the trial court improperly admitted evidence showing that he had shot his father in 1973. Erroneous evidentiary rulings by a state trial court generally do not rise to the level of constitutional violations upon which a federal court may issue a writ of habeas corpus. See Jenkins v. Bara, 663 F. Supp. 891, 899 (E.D.N.Y. 1987). Erroneous exclusion of evidence warrants habeas relief only if the omission deprived the petitioner of a fundamentally fair trial. McGuire, 502 U.S. at 72; Taylor v. Curry, 708 F.2d 886, 891 (2d Cir. 1983);see also Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (to warrant habeas relief, the erroneously admitted evidence must be "crucial, critical, [and] highly significant" (internal quotation marks omitted)). The test for determining whether erroneous evidentiary rulings denied the defendant a fair trial centers on whether the excluded evidence would have created "a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112 (1976). Even an error of constitutional magnitude does not require the granting of the writ unless the error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1995). In this regard, Lombard bears a "heavy burden."Roberts v. Scully, 875 F. Supp. 182, 189 (S.D.N.Y. 1993),aff'd, 71 F.3d 406 (2d Cir. 1995).
Like federal evidence law, New York law does not allow the introduction of evidence of uncharged crimes (i.e., crimes not charged in the indictment) to establish a defendant's criminal propensity. Such evidence may be admitted, however, if it bears on a material issue in the case and if its probative value exceeds its potential for prejudice to the defendant. See People v. Cook, 93 N.Y.2d 840, 841 (1999). The Appellate Division, in affirming Lombard's conviction, held:
By interposing an "insanity defense," the defendant necessarily put in issue relevant aspects of his character and personal history, and required the People, on rebuttal, to prove him sane beyond a reasonable doubt. The court therefore properly ruled that evidence of the defendant's conviction arising from his shooting of his father in 1973 was admissible to show that his motive for the shooting in the case at bar was revenge and that the probative value of the evidence outweighed any potential prejudice.Lombard, 685 N.Y.S.2d at 107.
At trial, the government's expert, Dr. Berger, testified that in his opinion, Lombard reacted with violence to those grievances that were both personal and stemmed from perceived physical abuse, and that Lombard' shootings of his father and Edelstein were two examples of this reaction. (Tr. at 962.) Berger testified that in both shootings, Lombard acted out of revenge and anger. (See, e.g., id at 956-59, 963-68, 970-73, 1063-65, 1093.) Evidence of the 1973 shooting was also relevant to impeach Lombard's expert witness, Dr. Kleinman, who did not mention the 1973 shooting in his report, but testified at trial as to how it was relevant to his ultimate conclusion that Lombard was not criminally responsible for shooting Edelstein. (Id. at 778-81, 783-84.)
Under precedents such as Santarelli, the trial court's decision to admit evidence of the 1973 shooting was not erroneous. Furthermore, because Lombard admitted at trial that he had shot Edelstein, any prejudicial tendency the evidence might have had to show propensity was minimal. Therefore, the probative value of this evidence outweighed its unfairly prejudicial effect. The trial court's ruling, and the Appellate Division's affirmance, were correct applications of New York evidence law. In any event, the decisions certainly were not unreasonable.
7. Perjured Testimony
Four of Lombard's claims allege perjury on behalf of various witnesses and the prosecutor. "A conviction obtained through use of false evidence, known to be such by representatives of the State, must fall under the Fourteenth Amendment." Napue v. Illinois, 360 U.S. 264, 269 (1959). The same is true when the government, "although not soliciting false evidence, allows it to go uncorrected when it appears."Id Under this standard, I must set aside Lombard's conviction if "the prosecution knew, or should have known, of the perjury," and "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."United States v. Agurs, 427 U.S. 97, 103 (1976). The Second Circuit has declined to "draw the contours of the phrase `should have known.'" Drake v. Portuondo, 321 F.3d 338, 345 (2d Cir. 2003). Because the Supreme Court has not clearly established that habeas relief is available in the complete absence of prosecutorial knowledge of perjury, I may not, consistent with § 2254(d)(1), grant relief on this ground. See id. at 345 n. 2 (AEDPA overrules Sanders v. Sullivan, 863 F.2d 218 (2d Cir. 1988), which granted habeas relief in the absence of prosecutorial knowledge of perjury).
Lombard offers no evidence to show that any of the testimony he cites was false or material, or that the prosecutor knew or should have known of its alleged falsity. Lombard simply argues that the cited testimony differs from his own version of the events; but that was a credibility issue for the jury to decide. In the absence of any evidence demonstrating that the prosecutor knowingly used, or should have known that she was using, material, perjured testimony, these claims cannot support issuance of the writ.
8. The Trial Court's Errors
Lombard contends that the trial court (1) improperly denied him daily copy of the trial, (2) improperly curtailed defense counsel's cross-examination of Officer McDonnell, (3) improperly refused to permit defense counsel to read a letter during summation, and (4) made improper remarks during the examination of Dr. Berger. I address these contentions in turn.
a. The Denial of Daily Copy
The trial court's failure to provide Lombard, who was not an indigent defendant, with daily copy does not violate the Constitution. United States v. Sliker, 751 F.2d 477, 491 (1984). "Common experience informs us that it is entirely practicable to present an effective defense in a criminal case without daily copy, however convenient daily copy undoubtedly is." Id.
b. The Curtailment of Cross-Examination
The Confrontation Clause does not prohibit a trial judge from imposing reasonable limits on a defense attorney's cross of a government witness.See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("[T]rial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.") "`The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.'" Id. (quoting Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam)). Here, the trial judge was simply enforcing New York hearsay rules by excluding a prior statement made by McDonnell that was not inconsistent with his testimony on the stand, and that was made several months after the crime. (Tr. at 450-51.)
c. The Curtailment of Summation
Lombard alleges that the trial court did not allow defense counsel to read to the jury a letter from Dr. Berger to an assistant district attorney. There is no evidence, however, that this ruling actually occurred. Lombard offers no evidence on the point, nor is there any reference in the record to such a ruling. It appears that Lombard is misreading the record. In his motion, Lombard claims that, during discussion of the alleged limitation on defense counsel's summation, defense counsel said that he "thought every thing conies in, in [an insanity] plea." (Resp't's Ex. C at 31 B.) According to Lombard, the court replied, "What I deem read in my court is read and what I deem not read is not read." (Id. (internal quotation marks omitted).) A similar conversation did occur between defense counsel and the court, but in the context of an objection made by the government to a question defense counsel asked Berger on cross-examination. (Tr. at 1108.)
After an objection by the prosecutor on relevancy grounds, defense counsel said to the court at sidebar, "I thought the rule is, in psych cases, everything comes in." (Tr. at 1108.) The court replied, "Everything that I deem can come in" (Id.), and sustained the prosecutor's objection.
In any event, the trial court would not have erred in precluding defense counsel from reading the letter, in which Berger explained his reasons for believing that Lombard was dangerous. (Resp. Ex. O; Tr. at 1014-16.) The letter did not address whether, under New York law, Lombard was criminally responsible for his actions (See Resp. Ex. O; Tr. at 1016), and the court therefore would not have abused its discretion in precluding defense counsel from reading it. See Herring v. New York, 422 U.S. 853, 862 (1975) ("The presiding judge must be and is given great latitude in controlling the duration and limiting the scope of closing summations. He may limit counsel to a reasonable time and may terminate argument when continuation would be repetitive or redundant. He may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial. In all these respects he must have broad discretion.");United States v. Bradley, 869 F.2d 121, 123 (2d Cir. 1989) (citing Herring): Sevencan v. Herbert, 152 F. Supp.2d 252, 269-70 (E.D.N.Y. 2001) (same); see also United States v. Remini, 967 F.2d 754, 758-59 (2d Cir. 1992) (trial court properly prohibited defense counsel from raising irrelevant issues during summation).
Furthermore, the letter had already been admitted into evidence as People's Exhibit 14 (Tr. at 882, 898-99), two expert witnesses testified regarding the letter (see, e.g., id. at 807, 881-83, 898-903, 1013-17, 1096-99), and defense counsel read portions of the letter to the jury during his examination of Berger (id. at 1096-99). Defense counsel also discussed the letter during summation and reminded the jurors that it was available for them to read, if they chose to do so. (Id. at 1130, 1158.) Any alleged limitation on counsel's ability to read from the letter during summation, therefore, did not prejudice Lombard.
In his section 440.10 motion, Lombard claimed that Berger stated in the letter that Lombard was mentally ill. (Resp. Ex. C at 30B.) Berger, however, never disputed that Lombard was mentally ill; rather, he testified that Lombard did not satisfy the elements of the New York insanity defense. (Tr. at 921-22, 1012-13,)
d. Comments During Trial
Lombard alleges that, during Berger's testimony, the court improperly stated that Berger was an expert (Resp. Ex. C at 31B) and improperly asked Berger whether, "`if the defendant took off his hat, . . . took his gun out of his pocket[,] took his scharf [sic] . . . off and wrapped all this up in his coat, then what you're saying is his thinking was normal'" (id, at 32B). The record, however, belies Lombard's contentions. I have reviewed Berger's testimony, and the alleged remarks do not appear in the record. (See Tr. at 907-1113.)
The trial court did qualify Berger as an expert witness (without actually calling him an expert), with no objection by defense counsel. (Tr. at 913.) Later in the government's rebuttal direct examination of Berger, the court, interrupting Berger's testimony to instruct the jury that they would be making the final determination in the case and that it was up to them to determine Lombard's credibility, said,
Dr. Berger has been called by the People as an expert in the area of forensic psychiatry. His opinion really goes to the state of mind of the defendant at the time he allegedly committed these acts. That's what you must focus on and should focus on, his opinion and the basis for his opinion. Not whether the defendant was telling the truth or not telling the truth. That's going to be up to you to determine. . . .
Credibility is an issue for you, the jury, and noone [sic] else, all right. So keep that in mind.
(Id. at 1008-09.) The trial court also asked the following question of Berger: "Are you saying that [Lombard's] statement to you that he didn't remove the coat and hat, and the gun was not in this newspaper, which is contrary to what certain witnesses stated, are you saying that is self-serving on the part of the defendant and lacks reliability?" (Id. at 992.)
In any event, such remarks would not have been improper. The government laid an ample foundation upon which the trial court could conclude that Berger was an expert in forensic psychiatry. (Id. at 907-13.) Furthermore, trial courts are permitted to question witnesses for purposes of clarification and expeditiousness. See United States v. Messina, 131 F.3d 36, 39-40 (2d Cir. 1997). Therefore, none of the alleged errors on the part of the trial court supports issuance of the writ.
9. Harassment of Lombard's Family
Lombard's claim that his family was harassed provides no basis for issuance of the writ, as it is irrelevant to the constitutionality of Lombard's judgment of conviction. See 28 U.S.C. § 2241 (c)(3) see also Estelle v. McGuire, 502 U.S. 62, 68 (1991).
In his section 440.10 motion, Lombard alleges that (1) his mother's car was stolen, (2) his mother received a threatening telephone call, (3) his mother received mailings from the Anti-Defamation League, (4) his father has been denied treatment at the Fort Hamilton Hospital and a VA hospital, (5) the VA has harassed Lombard's family about his father's pension, and (6) Fort Hamilton Hospital refused to pay for a senior citizens' home for Lombard's father. (Resp. Ex. C at 40B-42B.)
10. Ineffective Assistance of Counsel
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness," Id. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id at 694. In assessing the reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy."Strickland, 466 U.S. at 689 (internal quotation marks omitted);Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S.Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time."1Wiggins v. Smith, 123 S.Ct. 2527, 2535 (2003) (citations omitted) (quoting Strickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 2535 (quoting Strickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight.See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
The record establishes that defense counsel provided Lombard with competent representation. Counsel obtained a Wade hearing prior to trial, at which he argued that the police did not have sufficient information to detain Lombard after the shooting (Tr. at 49-50), and that evidence that Lombard shot his father in 1973 was inadmissible (Id. at 57-99, 104-11). Counsel opened by presenting Lombard's insanity defense to the jury, competently cross-examined the state's witnesses, and presented witnesses on Lombard's behalf, including Lombard's own testimony and that of a psychiatric expert. Counsel later urged the court to exercise leniency in sentencing.
Lombard argues that his lawyer should not have pursued an insanity defense, and that the better argument would have been that the crime was justified based on alleged damage done to Lombard's eyes by Edelstein three years prior to the shooting. (Resp. Ex. C at 43B-46B.) Of course, it is not the province of this Court to second-guess defense counsel's sound trial strategy. See Strickland, 466 U.S. at 689;Jackson, 162 F.3d at 85; see also Gentry, 124 S. Ct., 157 L.Ed. at 8. But even if it were, it would be impossible to criticize defense counsel's decision not to pursue Lombard's proposed defense, as it would only have helped to establish that Lombard had shot Edelstein and why, and would not have established any legal defense. An argument that Lombard was acting under an extreme emotional disturbance would have been equally unavailing, as evidence at trial established that the crime was carefully calculated. Therefore, Lombard's attorney acted reasonably in choosing which defenses to pursue, and provided Lombard with competent representation at trial.
Under New York law, a defendant is justified in using deadly physical force if he or she reasonably believes that the victim is using or is about to use deadly physical force against the defendant or another. N.Y. Penal Law § 35.15(2)(a); People v. Magliato, 68 N.Y, 2d 24, 30-31 (1986). A defendant who was able to retreat may not assert this defense. N.Y. Penal Law § 35.15(2)(a); People v. Russell, 91 N.Y.2d 280, 290 (1998). The evidence at trial established that Lombard was neither in imminent danger nor unable to retreat.
Evidence at trial, including Lombard's own testimony, established that Lombard had stalked the victim, learning the type of car he drove, the hours he worked, and where he parked his car (Tr. at 694-96). Further, Lombard wore a disguise during the crime, (See Id. at 699-700.) Lombard's conduct was therefore inconsistent with the "loss of self control normally associated with the defense of extreme emotional disturbance," People v. Goros, 224 A.D.2d 444, 444 (2d Dep't 1996), and his attorney was wise not to pursue it.
11. Prosecutorial Misconduct
Habeas relief based on a claim of prosecutorial misconduct during summation is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974);see also Pimentel v. Walsh, No. 02 Civ. 570, 2003 U.S. Dist. LEXIS 19677, at *19-*20 (S.D.N.Y. Nov. 4, 2003) ("To obtain relief on a prosecutorial misconduct claim, a habeas petitioner must show that `the prosecutor engaged in egregious misconduct . . . amounting to a denial of constitutional due process.'" (ellipsis in original) (quotingFloyd v. Meachum, 907 F.2d 347, 353 (2d Cir. 1991))). A petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation 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). In making this determination, the habeas court should consider the severity of the prosecutor's conduct, the measures, if any, that the trial court took to remedy any prejudice, and the certainty of conviction absent the prosecutor's remarks. See id.
The prosecutor's comments during summation — that Lombard shot Edelstein out of revenge, that Lombard's beliefs regarding Edelstein were delusional, and that Lombard knew that his assault on Edelstein was wrong — were reasonable inferences based on the evidence. The prosecutor did not act improperly when she elicited evidence of Edelstein's and Lombard's religions, as part of the government's case was that Lombard attacked his victim based in part on antisemitic delusions. As to Lombard's contentions regarding statements made in the prosecutor's opening, the New York Court of Appeals has recognized that a prosecutor is often "unable to prove every statement made in his opening. . . . But the general rule is that, absent bad faith or undue prejudice, a trial will not be undone." People v. De Tore, 34 N.Y.2d 199, 207 (1974) (citing Frazier v. Cupp, 394 U.S. 731, 735-36 (1969)). As Lombard submits no evidence of bad faith or undue prejudice, his allegations of misconduct in the state's opening will not support issuance of the writ. I have reviewed the rest of Lombard's claims of prosecutorial misconduct, and find them meritless as well.
12. Excessive Sentence
Lombard's 8 1/3-to-25-year sentence fell within the maximum sentence authorized by New York law for attempted murder in the second degree on the date of the crime, and therefore does not qualify for consideration as excessive under the Eighth Amendment.See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992) ("No federal constitutional issue is presented where . . . the sentence is within the range prescribed by state law.").
CONCLUSION
For the foregoing reasons, the petition is denied. Because Lombard has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.