Opinion
10 Civ. 2565 (PKC) (KNF).
June 18, 2010
MEMORANDUM and ORDER
INTRODUCTION
On January 31, 2006, after a jury trial, the New York State Supreme Court, New York County convicted Jose Otero Luna ("Luna") for two counts of first-degree burglary and three counts of second-degree robbery, and sentenced him to concurrent terms of 15 years' imprisonment on each burglary conviction and 10 years' imprisonment on each robbery conviction. On October 4, 2007, the New York State Supreme Court, Appellate Division, First Department, affirmed, Luna's conviction and sentence unanimously,see People v. Luna, 44 A.D.3d 341, 841 N.Y.S.2d 875 (App. Div. 1st Dep't 2007), and, on January 14, 2008, the New York Court of Appeals denied Luna leave to appeal. See People v. Luna, 9 N.Y.3d 1035, 852 N.Y.S.2d 21 (2008). Thereafter, Luna filed a petition for a writ of error coram nobis, claiming ineffective assistance from appellate counsel. On December 9, 2008, the Appellate Division, First Department, denied Luna's coram nobis petition,see People v. Luna, 2008 N.Y. App. Div. LEXIS 10366 (App. Div. 1st Dep't 2008), and, on June 4, 2009, the New York Court of Appeals denied Luna leave to appeal the denial. See People v. Luna, 12 N.Y.3d 917, 884 N.Y.S.2d 698 (2009).
On January 25, 2010, Luna, proceeding pro se and in forma pauperis, filed a petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Luna challenges his confinement by New York State on three grounds: (1) the evidence presented during his trial was insufficient, as a matter of law, to support his convictions; (2) the trial court violated the Confrontation Clause of the Sixth Amendment, by allowing a detective to testify about an accomplice's inculpation of Luna, while disallowing the accomplice to testify; and (3) the assistance rendered by his appellate counsel was ineffective.
The prison mailbox rule dictates that a pro se prisoner's federal habeas corpus petition be deemed filed as of the date the inmate gives the petition to prison officials for forwarding to the court. See Noble v. Kelly, 246 F.3d 93, 97-98 (2d Cir. 2001). On Luna's habeas corpus petition, January 25, 2010 is displayed as the "date submitted."
Before the Court is Luna's application, for the Court to appoint counsel to assist him in presenting his petition.
BACKGROUND
This recitation of facts is taken from Luna's memorandum of law, submitted in support of his habeas corpus petition.
In late July 2004, Luna drove William Williams ("Williams") and Jose Martinez ("Martinez") from Pennsylvania, to New York, in exchange for $100, paid by Martinez. Luna maintains he believed Williams and Martinez planned to attend a baby shower. Instead, Williams stole money from Bernarda Rodriguez ("Rodriguez"), hit her in the head with a gun and ransacked her apartment. Martinez shot Rodriguez's son and stole various items from his person. Police apprehended Williams and Martinez at the scene of the crime. Thereafter, Williams led police to Luna's home in Allentown, Pennsylvania. Police questioned Luna, eventually arresting and charging him with two counts of first-degree burglary, see New York Penal Law § 140.30, and three counts of second-degree robbery.See New York Penal Law § 160.10.
DISCUSSION
1. Standard
No constitutional right to counsel exists in habeas corpus proceedings. See Wright v. West, 505 U.S. 277, 293, 112 S. Ct. 2482, 2490 (1992). However, a district court may, in its discretion, appoint counsel to assist a prisoner seeking federal habeas corpus relief, under 28 U.S.C. § 2254, provided the prisoner is "financially unable to obtain adequate representation" and "the interests of justice so require." 18 U.S.C. §§ 3006A(a) (a)(2).
In determining whether to appoint counsel for a habeas corpus petitioner, the Court applies the same standard used to appoint counsel to other civil litigants, pursuant to 28 U.S.C. § 1915(e)(1). Specifically, first, a district court "must [] ascertain whether [a] litigant is able to afford or otherwise obtain counsel." Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). Should the court, find the plaintiff unable to obtain counsel, it should, thereafter, "determine whether the indigent's position seems likely to be of substance."Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986, 112 S. Ct. 596 (1991). This means that it appears to the court, "from the face of the pleading[s]," see Stewart v. McMickens, 677 F. Supp. 226, 228 (S.D.N.Y. 1988), that the claim(s) asserted by the plaintiff may have some merit, or that the plaintiff "appears to have some chance of success. . . ." Hodge, 802 F.2d at 60-61. The pleadings drafted by a pro se litigant, such as Luna, are to be construed liberally and interpreted to raise the strongest arguments they suggest.See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
Only if a plaintiff satisfies the threshold "test of likely merit," should a court consider "secondary criteria." Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172-73 (2d Cir. 1989). These criteria include: (1) the indigent's ability to investigate the crucial facts; (2) whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact-finder; (3) the indigent's ability to present the case; (4) the complexity of the legal issues; and (5) any special reason, in that case, why appointment of counsel would be more likely to lead to a just determination. See Hodge, 802 F.2d at 61-62.
2. Application
The court granted Luna in forma pauperis status, prior to filing his petition, placing him within the class of persons contemplated by 28 U.S.C. § 1915(e)(1). See Sears, Roebuck and Co. v. Charles W. Sears Real Estate, 865 F.2d 22, 24 (2d Cir. 1988). Thus, the Court is satisfied that he is without the financial means to obtain counsel. Moreover, Luna has represented to the Court, that he has, independently, attempted to engage counsel, prior to making the instant application, but to no avail. Under these circumstances, it is appropriate to consider the merits of Luna's petition. See Hodge, 802 F.2d at 61.
In connection with his application for appointment of counsel, Luna has submitted a declaration, under penalty of perjury, stating he has contacted two organizations in an effort to secure counsel to assist him with this action. Luna submitted, with his application, a November 24, 2009 letter, from the Center for Appellate Litigation, informing him it cannot assist him in the instant action.
Based on a preliminary review of Luna's habeas corpus petition, and without prejudice to future resolution of the petition, the Court finds Luna's petition is unlikely to be meritorious and appointing counsel to assist him would be inappropriate at this juncture. See Cooper, 877 F.2d at 172 (holding a district court should not grant applications for appointment of counsel "indiscriminately").
A. Insufficient Evidence
A state prisoner must exhaust available state remedies, before filing a habeas corpus petition in federal court. 28 U.S.C. § 2254(b)(1), (c). Exhaustion of state remedies requires that a prisoner "fairly present[]," to the state courts, the claims ultimately raised in his habeas corpus petition. O'Sullivan v. Boerckel, 526 U.S. 838, 848, 119 S. Ct. 1728, 1734 (1999). In his habeas corpus petition, Luna admits to not raising his insufficient evidence claim on direct appeal to the Appellate Division. To the extent no state remedies remain "available," see 28 U.S.C. § 2254(b)(1)(B)(i), to Luna, with regard to this claim, he has met "the technical requirements for exhaustion." Coleman v. Thompson, 501 U.S. 722, 732, 111 S. Ct. 2546, 2555 (1991). However, in such a circumstance, Luna's claim is deemed procedurally defaulted and, hence, barred from federal review. Id., 501 U.S. at 735 n. 1, 111 S. Ct. at 2557 n. 1; Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (finding petitioner's claims exhausted, but procedurally defaulted owing to his failure to raise them on direct appeal to the state court).
In such cases, "federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S. Ct. at 2565. While "[a]ttorney error that constitutes ineffective assistance of counsel" can be cause, for the purpose of remedying a procedural default, see id, 501 U.S. at 753-54, 111 S. Ct. at 2567, "counsel's ineffectiveness will constitute cause only if it is an independent constitutional violation." See id, 501 U.S. at 755, 111 S. Ct. at 2567. As explained below, the Court finds it unlikely that Luna will be able to demonstrate his appellate counsel's errors rise to the level of a constitutional violation. Accordingly, the Court will likely be barred from reviewing Luna's insufficient evidence claim, which, in any event, based on information before the Court, does not appear to be meritorious.
B. Confrontation Clause
A district court is barred from reviewing a federal claim in a habeas corpus action where a state court declined previously to address the claim "because the prisoner had failed to meet a state procedural requirement." Id., 501 U.S. at 729-30, 111 S. Ct. at 2554. "In these cases, the state judgment rests on independent and adequate state procedural grounds." Id., 501 U.S. at 730, 111 S. Ct. at 2554.
Though Luna did raise his Confrontation Clause claim on direct appeal, the Appellate Division found that he did not preserve this claim for appellate review and "decline[d] to review it in the interest of justice." Luna, 44 A.D.3d at 341, 841 N.Y.S.2d at 875. The Appellate Division went on to state that "[i]n any event, we find any error to be harmless[.]" Id. "[E]ven when a state court says that a claim is `not preserved for appellate review' but then rules `in any event' on the merits, such a claim is procedurally defaulted." Green v. Travis, 414 F.3d 288, 294 (2d Cir. 2005). Accordingly, as the Court can neither discern, from Luna's petition, any cause for the default and prejudice to the petitioner, nor that a showing of actual innocence has been made that would potentially cure his default, see Aparicio, 269 F.3d at 91, a review of this claim, by the Court, would likely be barred.
C. Ineffective Assistance of Appellate Counsel
To establish ineffective assistance of appellate counsel, a habeas corpus petitioner must demonstrate that: (1) "`counsel's representation fell below an objective standard of reasonableness'"; and (2) "`there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different[.]'" Forbes v. United States, 574 F.3d 101, 106 (2d Cir. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052); see Smith v. Robbins, 528 U.S. 259, 285, 120 S. Ct. 746, 764 (2000) (finding the proper standard for evaluating a claim of ineffective assistance of appellate counsel to be that articulated in Strickland).
Luna contends his appellate counsel was ineffective, for failing to advance his insufficient evidence argument on direct appeal, and for stating, erroneously, at some point, that Luna had a prior arrest record, which prevented Luna from obtaining free legal representation from "the Immigration Department." Given "the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,"Strickland, 466 U.S. at 689, 104 S. Ct. at 2055, and the Second Circuit's holding that "it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument" in order to prove ineffective assistance of counsel,see Aparicio, 269 F.3d at 95 (finding counsel's failure to raise arguments on direct appeal did not rise to the level of ineffective assistance of appellate counsel), it appears unlikely Luna's ineffective assistance of counsel claim will be successful.
D. Secondary Factors
Even if Luna were able to meet the threshold inquiry of "likely merit," the secondary criteria in the instant case militate against appointing counsel. Though Luna's incarceration may limit somewhat his ability to present his case, the same limitation is on all prisoners litigating civil claims. Luna's habeas corpus petition does not raise complicated issues, nor is the procedural history surrounding his case complex. Nothing, from the face of Luna's petition, suggests an evidentiary hearing will be necessary for the Court to consider fully his application, see Rule 8(a) of the Rules Governing Section 2254 Cases in the United States District Courts, or that Luna will need to rely on witness cross-examination to prove his claims. The Court discerns no "special reason," see Hodge, 802 F.2d at 62, why appointing counsel to assist Luna would be warranted or prudent.
CONCLUSION
For the reasons set forth above, Luna's application for appointment of counsel, pursuant to 18 U.S.C. § 3006A, is denied. This order resolves Docket Entry No. 3.SO ORDERED: