Summary
holding that a Section 440.30 motion "is akin to a section 440.10 motion to vacate"
Summary of this case from Green v. WalshOpinion
02-CV-6743 (JBW), 03-MISC-0066 (JBW)
August 21, 2003
MEMORANDUM, JUDGMENT ORDER
Petitioner (sometimes referred to as "defendant") was granted a hearing. He was present by telephone. For the reasons stated below the petition is denied. Procedures for attaining DNA testing in state post-conviction proceedings are implicated in this case of first impression.
The threshold issue in this petition for habeas corpus is whether the petition was timely filed under AEDPA. The timeliness of the petition is dependent on whether or not the petitioner's motion for DNA testing in state court tolled AEDPA's statute of limitations. A serious question is raised on the merits by petitioner's claim that the state courts violated his due process rights by denying his motion for post-conviction DNA testing. Other claims are also raised. Petitioner requested counsel. The court denied petitioner's request based on the claims' lack of merit.
Facts
Petitioner and his wife, Delores, had an unhappy marriage, In April 1985, petitioner told a female friend (Elizabeth Putnam) and a woman with whom he was having an affair (Jacqueline Pascalli) that he wanted to kill his wife. Both women believed that petitioner was joking or intoxicated at the time and not serious. Later that month, petitioner asked his female friend if she knew anyone who would kill his wife. She later put him in touch with a local loan shark, Wilson Rodriquez. Rodriquez, a Hispanic male, had dark hair and a slight mustache. Rodriquez later spoke to a friend of his, James Barnes, about arranging a murder for hire.
On June 25, 1985 at 10:00 a.m., Delores McDonald waved to a neighbor from her window. When the neighbor returned half-an-hour later from an errand, she noticed a Hispanic man standing on the top of the stoop outside the McDonald home. He had dark hair, a mustache, and was wearing a hooded sweatshirt, jeans, and had a red handkerchief sticking out of the pocket of his denim jacket. That evening, petitioner returned home and chatted with another neighbor. He then entered his home. Moments later, he came running out, screaming his wife's name. The neighbor entered the McDonald home with petitioner and saw Delores McDonald's dead body.
Police investigators found that the front door had not been forced open. Instead, several of the screws holding the lock's faceplate in had been carefully removed. They also noticed that the assailant had strewn various papers and magazines across the floor but had left the television and stereo as well as the victim's rings. The police concluded that the scene was intended to look as though a burglary had occurred. An autopsy revealed that Mrs. McDonald had been struck numerous times in the head with a blunt object and that she had been strangled. She had also been anally sodomized with an object.
Although petitioner's daughter wanted to continue living with her father, he told her to live with her grandparents. In August 1985, the woman with whom petitioner had been having an affair moved in with petitioner. He told her that the victim's family had requested that petitioner tell people that his wife and daughter had moved to California. He told his female friend that he was marrying the woman with whom he had had the affair. He later accused the friend of having "ratted" him out and of having made a tape for the police.
Petitioner and Rodriquez were charged with one count of murder in the second degree and one count of conspiracy in the second degree. The defendants were tried separately and both were convicted on all counts. Petitioner was sentenced on June 7, 1988 to consecutive prison terms of twenty-five years to life on the murder count and eight and one-third to twenty-five years on the conspiracy count.
On October 31, 1990, petitioner moved to vacate his judgment of conviction pursuant to section 440.10 of the New York Criminal Procedure Law. He claimed that he had newly discovered evidence that the prosecution's witness had a criminal record and that the prosecutor had failed to turn over Brady material. On July 12, 1991, the trial court denied the motion. Leave to appeal was denied by the Appellate Division.
Petitioner appealed his conviction to the Appellate Division. He raised the following claims:
1. the trial court erred by admitting inadmissible and prejudicial evidence;
2. petitioner was denied his right to present a defense;
3. the evidence was legally insufficient because it did not establish that codefendant Rodriquez was the killer;
4. petitioner's conviction as an accessory violated due process because there was no evidence presented regarding the conduct of the principal;
5. the prosecutor impermissibly shifted the burden of proof and vouched for the credibility of a witness; and
6. fundamental errors in the trial court's charge violated petitioner's due process rights.
On September 23, 1996, the Appellate Division affirmed petitioner's judgment of conviction. See People v. McDonald, 647 N.Y.S.2d 795 (N.Y.App.Div.2d Dep't 1996). Leave to appeal to the New York Court of Appeals was denied. See People v. McDonald, 677 N.E.2d 300 (N. Y. 1996).
On October 29, 1997, petitioner again moved to vacate his judgment pursuant to section 440.10, The motion was accompanied by a cover letter dated November 12, 1997. He made two claims: (1) that the prosecution had withheld Brady material; and (2) that petitioner did not receive the effective assistance of trial counsel. On April 27, 1998, the trial court denied the motion. Leave to appeal was denied by the Appellate Division on September 9, 1998.
On April 3, 1998, petitioner moved to compel disclosure of the results of a hair analysis conducted by the police laboratory. The trial court denied the motion.
On June 29, 1998, petitioner moved for DNA testing of the hairs found at the crime scene and of hairs taken from Rodriquez pursuant to section 440.30(l-a) of the New York Criminal Procedure Law. The motion was not accepted by the clerk's office because no affidavit of service was included. Petitioner resubmitted the motion on July 30, 1998. It was denied by the trial court on June 23, 1999.
On September 14, 1999, petitioner moved for a writ of error coram nobis alleging the ineffective assistance of appellate counsel. On December 20, 1999, the Appellate Division denied the motion. See People v. McDonald, 700 N.Y.S.2d 743 (N.Y.App.Div.2d Dep't 1999).
In 1999, the New York State Legislature amended New York Criminal Procedure Law section 450.10 to grant defendants an appeal as of right to the Appellate Division from an order denying a motion pursuant to New York Criminal Procedure Law section 440.30(1-a) for post-conviction DNA testing. The amendment took effect on December 1, 1999.
On November 29, 1999, petitioner appealed the June 23 decision. The court clerk rejected the motion. On January 10, 2000, the clerk's office notified petitioner that it had erred and directed him to file a notice of appeal. On January 17, 2000, petitioner did so.
By pro se petition dated January 10, 2000, petitioner applied for a writ of habeas corpus. On February 27, 2000, he requested that his petition be held in abeyance while he pursued his state appeal denying him DNA testing. On March 13, 2000, in response to petitioner's letter, the court ordered the case "dismissed with leave to reinstate as an original petition." Recent Second Circuit case law holds that, after Duncan v. Walker, 533 U.S. 167 (2001), district courts should stay proceedings pending exhaustion rather than dismiss petitions and that equitable tolling doctrine should be applied by the district court where it failed to do so and resulted in harm to the petitioner. Zarvela v. Artuz, 254 F.3d 374, 380 (2d Cir. 2001) (quotation omitted), cert. denied. As discussed below, however, it is not necessary to treat the instant petition nunc pro tunc since the petition is timely even without doing so.
On October 15, 2002, the Appellate Division affirmed the denial of DNA testing. See People v. McDonald, 748 N.Y.S.2d 275 (N.Y. A.D.2d Dep't 2002). By papers dated October 23, 25, and November 13, 2002, petitioner sought leave to appeal the denial to the New York Court of Appeals. Permission was denied on December 5, 2002.
While his appeal was pending, petitioner filed a motion in the trial court dated April 15, 2002 in which he sought the preservation of certain evidence. On May 23, 2002, the trial court ordered the Property Clerk's Office to preserve evidence stored under two different numbers. This order was subsequently extended until all appeals were final.
By application dated December 17, 2002, petitioner seeks a writ of habeas corpus. He raises the following claims:
(1) the prosecution erred by failing to reveal that one of its witnesses had a criminal record in Florida;
(2) petitioner's conviction violated his due process rights because his codefendant's guilt was not proven at petitioner's trial;
(3) trial counsel was ineffective;
(4) appellate counsel was ineffective;
(5) petitioner's guilt was not proven beyond a reasonable doubt; and
(6) petitioner was denied his due process rights when the State court did not order post-conviction DNA testing pursuant to section 440.30(l-a) of the New York Criminal Procedure Law.
The timeliness of the petition turns on whether petitioner's motion for DNA testing tolls the limitation period under AEDPA, apparently an issue of first impression in this circuit. Because petitioner's request for DNA testing under section 440.30(1-a) of the New York Criminal Procedure Law was a "properly filed application for State post-conviction or other collateral review," 28 U.S.C. § 2244(d)(2), the limitation period under AEDPA was tolled during the pendency of his request. His present habeas petition is therefore timely.
Discussion
A. AEDPA Limitation Period
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), provides a one year period of limitations for a state prisoner to file for a federal writ of habeas corpus. 28 U.S.C. § 2244(d). The "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted" toward the year-long limitation period. 28 U.S.C. § 2244(d)(2), Petitioner was sentenced on June 7, 1988, the Appellate Division affirmed his conviction on September 23, 1996, and the Court of Appeals of New York denied petitioner leave to appeal further on December 17, 1996. The AEDPA limitation period began to run on March 17, 1997, ninety days after leave to appeal was denied. See Williams v. Artuz, 237 F.3d 147, 151 (2d Cir. 2001) (holding that a conviction does not become final until the completion of certiorari proceedings in the Supreme Court or "the time to seek direct review via certiorari has expired").
The period of limitations is tolled while a state prisoner's application for collateral review in state courts is pending. 28 U.S.C. § 2244(d)(2). On October 29, 1997, petitioner filed a section 440.10 motion to vacate conviction. The Supreme Court, Kings County, denied the motion on the merits on April 27, 1998, and petitioner requested permission to appeal on May 20, 1998, On September 9, 1998, petitioner was denied permission to appeal further. The limitation period was tolled between October 29, 1997 and September 9, 1998. Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review).
On June 29, 1998, while waiting for the court's response to his request for permission to appeal from his October 29, 1997 motion, petitioner filed a new section 440.10 motion pursuant to section 440.30(l-a). The Supreme Court, Kings County, denied this motion on the merits on June 23, 1999, and petitioner requested permission to appeal on July 26, 1999. On November 17, 1999, the Appellate Division, Second Department denied petitioner permission to appeal further, and petitioner's notice of appeal filed on November 29, 1999, was rejected by the clerk's office. On December 1, 1999, however, New York Criminal Procedure Law § 450.10 was amended to grant defendants an appeal as of right from an order denying a motion pursuant to section 440.30(l-a). Following this amendment, the clerk's office wrote a letter to petitioner acknowledging its error and directing him to file notice of appeal, which he did on January 27, 2000. The Appellate Division affirmed the New York Supreme Court's order denying post-conviction DNA testing on the merits on October 15, 2002. On November 13, 2002, petitioner requested permission to appeal from this decision and permission was denied on December 5, 2002. The limitations period should be tolled under AEDPA while petitioner's 440.10 motion pursuant to section 440.30(1-a) was pending, which would be from June 29, 1998 to December 5, 2002.
The times during which the section 440.10 motions were pending overlapped, so the period of limitations only ran for 238 days: the 226 days between March 17, 1997, when petitioner's conviction became final and October 29, 1997 when petitioner filed a section 440.10 motion; and the 12 days between December 5, 2002, when petitioner was denied permission to appeal further from the order denying his motion for DNA testing and December 17, 2002, when petitioner re-submitted his application for a federal writ of habeas corpus. Therefore, petitioner's application was timely.
1. Tolling by Motion Pursuant to New York Criminal Procedure Law § 440.30(l-a)
Whether or not a motion based on section 440.30(1-a) will toll the limitation period appears to be a question of first impression. Kathy Swedlow, Don't Believe Everything You Read: A Review of Modern `Post-Conviction' DNA Testing Statutes, 38 Cal. W. L. Rev. 355, 362 (2002) ("no court has yet spoken to the issue of how these new DNA testing statutes will be considered under the AEDPA"). In determining whether a motion falls within the meaning of an "application for State post-conviction or other collateral review," 28 U.S.C. § 2244(d)(2), courts have looked to see whether the motion challenged the conviction, Hodge v. Greiner, 269 F.3d 104, 107 (2d Cir. 2001); see also Duamutef v. Mazzuca, 2002 WL 413812, at *7. Motions pursuant to section 440.10 are motions to vacate and, therefore, challenge the conviction. N.Y. Crim. Proc. Law § 440.10. A section 440.30 motion is "best understood as a . . . § 440.10 motion to vacate judgment that complied with the requirements of § 440.30." Norman v. State, No. 97 Civ. 7051 (MBM), 1999 WL 983869, at *2 (S.D.N.Y. Oct. 29, 1999).
The language and purpose of section 440.30(l-a) suggest that it defines a request for DNA testing as a ground for a section 440,10 challenge to conviction. Section 440.30(1) lays out the procedure for a motion to vacate pursuant to Section 440.10. Section 440.30(1-a), being a subsection of Section 440.30(1), apparently instructs the courts about how to rule on one specific kind of 440.10 motion. The subsection states the following:
In cases of convictions occurring before January first, nineteen hundred ninety-six, where the defendant's motion requests the performance of a forensic DNA test on specified evidence, and upon the court's determination that any evidence containing deoxyribonucleic acid ("DNA") was secured in connection with the trial resulting in the judgment, the court shall grant the application for forensic DNA testing of such evidence upon its determination that if a DNA test had been conducted on such evidence, and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant.
N.Y. Crim. Proc. Law § 440.30(1-a). Assuming that the motion referred to in section 440.30(1-a) is one of the two sorts of motions dealt with by section 440.30(1), it would be authorized by section 440.10 rather than section 440.20. See N.Y. Crim. Proc. Law § 440.20 (applying to motions to set aside a sentence). The motion for DNA testing is either authorized specifically by section 440.30(1-a), which sets forth a new ground for motions to vacate, or by section 44.10(g), which allows the court to grant a motion to vacate based on a finding of new evidence. N.Y. Crim. Proc. Law § 44.10(g). See Peter Preiser, Supplementary Practice Commentaries (1994), available at Historical and Statutory Notes under Westlaw's N.Y. Crim. Proc. § 440.30.
Section 440.10(1)(g) states that the court may vacate a judgment upon the ground that "[n]ew evidence has been discovered since the entry of a judgment based upon a verdict of guilty after trial, which could not have been produced by the defendant at the trial even with due diligence on his part. . . ." Section 440.30(1-a) seems to be a legislative determination that in cases before January 1, 1996, defendants were unable to perform a forensic DNA test on specified evidence "even with due diligence." Peter Preiser, Supplementary Practice Commentaries (1994), available at Historical and Statutory Notes under Westlaw's N.Y. Crim. Proc. § 440.30.
Because a motion pursuant to section 440.30(l-a) is akin to a section 440.10 motion to vacate, it is distinguishable from motions for discovery, which do not toll the limitation period. Cf. Hodge v. Greiner, 269 F.3d at 106-07 (holding that an Article 78 proceeding to obtain additional documents did not toll while a section 440.10 motion did); cf. Duamutef v. Mazzuca, 2002 WL 413812, at *7 (holding that FOIL requests did not toll the limitation period while section 440 motions did). A motion pursuant to section 440.30(1-a) challenges petitioner's conviction and tolls the limitation period under AEDPA.
2. Requirement That Motion Was Properly Filed
Respondent's claim that the petitioner's motion for the DNA testing was not properly filed is unfounded. The Supreme Court held that an application for post-conviction or collateral review is "properly filed" for purposes of section 2244(d)(2) of AEDPA when "its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee." Artuz v. Bennett, 531 U.S. 4, 8 (2000). In "common usage, the question whether an application has been `properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." Id. at 9 (emphasis in original), The respondent does not allege that the petitioner failed to comply with laws and rules for filing, rather he argues that "there is no statutory basis for post-conviction discovery in criminal cases, other than the DNA testing authorized by 440.30(l-a)." Since he concedes that section 440.30(l-a) authorizes DNA testing, the statement that there is no statutory basis for the DNA testing is unpersuasive.
Failure to perfect previous section 440.10 motions would not prevent a subsequent section 440.10 motion from tolling the limitation period. Artuz v. Bennett, 531 U.S. 4, 11 (2000). Section 440.10(2)(c) provides:
[T]he court must deny a motion to vacate a judgment when: . . . (c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal actually perfected by him . . .
N.Y. Crim. Pro. Law § 440.10(2)(c). The Court in Artuz v. Bennett held that "the alleged failure of the respondent's application to comply with §§ 440.10(2)(a) and (c) does not render it `improperly filed' for purposes of § 2244(d)(2)." 531 U.S. 4, 11 (2000). Petitioner's section 440.30(1-a) motion was properly filed for purposes of tolling the AEDPA limitation period.
3. Equitable Tolling
In addition to the statutory provision for the tolling of the statute of limitations, courts have held that they have the discretion to recognize equitable tolling because the AEDPA deadline for filing is not a jurisdictional bar. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), Duamutef v. Mazzuca, 2002 WL 413812, *9 (S.D.N.Y. 2002). If the court decides that the motion for DNA testing does not toll the limitation period, it can consider equitably tolling the limitation period. There is a very high burden for equitable tolling. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) (finding that the petitioner must "show that extraordinary circumstances prevented him from filing his petition on time. . . . [and] must have acted with reasonable diligence throughout the period he seeks to toll" (citations omitted)). This issue need not be decided since tolling was not required for the petition to be timely.
B. Merits of Claim that Denial of Post-Conviction DNA Testing Violated Due Process
Petitioner claims that he was denied his right to due process of law because the state courts did not order post-conviction DNA tests pursuant to New York Criminal Procedure Law § 440,30(1-a). Although this claim, if true, could rise to the level of a violation of petitioner's constitutional liberty interest, thus constituting a ground for granting the writ of habeas corpus, the circumstances of this case do not approach the level required for such a finding.
1. AEDPA Standard of Review
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d). An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ 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 this Court has on a set of materially indistinguishable facts." Williams v, Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
2. Constitutional Liberty Interest
Under the AEDPA standard of review, a federal court may not grant a writ of habeas corpus if the state court's decision incorrectly interpreted or applied a matter of state law. Jelinek v. Costello, 99-CV-2327, 2003 U.S. Dist. LEXIS 2775, at * 152 (E.D.N.Y. February 27, 2003). Because § 440.30(1-a) is a New York state statute, a state court decision applying or interpreting it can only be challenged under AEDPA if the denial of the procedural right implicates an interest that is protected by the Due Process Clause of the Constitution. The Supreme Court has "repeatedly held that state statutes may create liberty interests that are entitled to the procedural protections of the Due Process Clause of the Fourteenth Amendment." Vitek v. Jones, 445 U.S. 480, 562 (1980). Such state-created rights may not be "arbitrarily abrogated." Wolff v. McDonnell, 418 U.S. 539, 557 (1974); see also Evitts v. Lucey, 469 U.S. 387, 400-01 (1985) (Due Process Clause guarantees a state criminal defendant the effective assistance of counsel on his first appeal as of right if the state grants appeals as of right, which the Constitution does not require); Goldberg v. Kelly, 397 U.S. 254, 262 (1970) (although a state may choose whether to institute a welfare program, it must operate whatever programs it does establish subject to the protections of the Due Process Clause); Saldana v. New York, 665 F. Supp. 271, 275 (S.D.N.Y. 1987) (once a state creates a right for a defendant to testify before a Grand Jury, "it cannot cause that right to be forfeited in a manner which is arbitrary or fundamentally unfair"), rev'd on other grounds, 850 F.2d 117 (2d Cir. 1988).
In order for such a claim to be reviewed by a federal habeas court, a petitioner must have explicitly raised the federal issue in state court because otherwise the state court motions would be "insufficient to put the state court on notice that they were to decide federal constitutional claims." Jelinek v. Costello, 2003 U.S. Dist. LEXIS 2775, at * 155-56 (quoting Dennis v. Henderson, No. 99 Civ. 0693, 1989 U.S. Dist. LEXIS 11452, at *2 (S.D.N.Y. Sept. 28, 1989)). Furthermore, even if petitioner was not procedurally barred from raising this issue, a constitutional error will merit habeas corpus relief only if it had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Jelinek v. Costello, 2003 U.S. Dist. LEXIS 2775, at * 153 (citations omitted).
3. State Court's Decision to Deny DNA Testing
Under § 440.3 0(1-a), the petitioner must establish that the evidence that he or she seeks to have tested for DNA is still in existence and is "available in quantities sufficient to make testing feasible. . . ." People v. Ahlers, 285 A.D.2d 664, 665 (N.Y.App.Div. 2001). Furthermore, courts are only required to grant the application for forensic DNA testing if it determines that "if a DNA test had been conducted on [evidence containing DNA], and if the results had been admitted in the trial resulting in the judgment, there exists a reasonable probability that the verdict would have been more favorable to the defendant." N.Y. Crim. Pro. § 440.30(l-a). The state court's decision to deny this motion was reasonable and, therefore, does not constitute a basis for issuing a writ of habeas corpus.
Petitioner seeks DNA testing for four body hairs found on the deceased. Petitioner was convicted of one count of Murder in the Second Degree and one count of Conspiracy in the Second Degree for hiring someone to kill his wife. The pertinent facts that the state court had before it in determining that the 440.30(l-a) motion should be denied were as follows:
• Two witnesses testified that he talked about having someone kill his wife and making it look as if there had been a robbery
• One of the two witnesses testified that petitioner kept seeking her help in finding someone to murder his wife and that in response she introduced him to the co-defendant
• Both witnesses testified that petitioner did, in fact, talk to co-defendant
• A friend of the co-defendant testified that the co-defendant asked him if he knew anyone who would be willing to kill someone's wife for money
• The day before the murder, petitioner called his daughter who was in Florida with her maternal grandparents and asked when she was returning
• Petitioner's daughter testified that she told him she would be back in New York in 2 days
• A neighbor testified that the day of the murder, petitioner's wife waved hello to her from the house at 10a.m.
• She also testified that about thirty minutes later when she returned to her house from running an errand, she saw a man, not the petitioner, on the top of the stoop of petitioner's home with a full garbage bag
• Another neighbor testified that at about 7:30 petitioner came home with roses in a flower pot, spoke with the neighbor for about ten minutes, and then went into his house
• The neighbor also testified that petitioner reemerged after a couple of minutes yelling "Delores, Delores" and hitting the side of the stoop
• After being taken into the house by petitioner and seeing petitioner's wife dead, the neighbor called the police
• Investigation of the scene showed that the front door was not forced open, but that screws were unscrewed from the lock from the inside of the door to make it look as though the door was forced
• The objects strewn around the floor were papers from the first two drawers of a cabinet and magazines from a magazine rack on the other side of the room by the television, which would not be strewn about in the course of a normal robbery
• Items of value (a television, a stereo, rings on the hand of the victim) were not taken
• When the daughter returned, petitioner had her live with her grandparents even though she wanted to live with him
• The daughter's room was rented out to the woman who petitioner was having an affair with before his wife's murder, and she testified that petitioner told her that his daughter did not want to live with him
• She also testified that petitioner told her that his wife's family wanted him to tell people that he and his wife had divorced and that she had moved to California with her daughter
• The woman who introduced petitioner to the co-defendant testified that when she saw petitioner in the summer, he told her that his wife and daughter were in California and that he and his wife were getting divorced
Of the four hairs that petitioner seeks to have tested, one was determined to be an animal hair and one was similar to the petitioner's pubic hair. It cannot be determined when these hairs were left. The best the petitioner could hope for from DNA tests would be that at least one of the hairs did not belong to the petitioner, the wife, or the co-defendant.
Petitioner's co-defendant was tried separately and he was convicted of murder in the second degree and conspiracy in the second degree.
The state court's determination that there was no reasonable probability that the verdict would have been more favorable to petitioner if one hair was from an unknown individual was a reasonable application of the law to the facts, does not constitute a constitutional violation of petitioner's rights, and does not support the granting of a writ of habeas corpus.
Both petitioner and his designated killer, Rodriquez, were looking for a third person to do the actual killing. If they were successful, as a jury could conclude, the hair, coming from an unknown third person would not prove petitioner's innocence. Given the circumstances, the value of DNA testing was almost zero. It is highly unlikely that the hypothesized unknown intruder who might have left a hair on the victim was unconnected with the petitioner's scheme. This was not like a Woody Allen's Take the Money and Run where two independent teams of criminals entered a bank at the same time to rob it.
C. Remaining Issues
Five of petitioner's claims remain:
1. Prosecution Erred by Failing to Disclose Criminal Record of a Key Witness
This claim was the subject of petitioner's motion on October 31, 1990 pursuant to section 440.10. The Supreme Court, Kings County, denied this motion on the merits, holding that there was no Brady violation and that even if there was a Brady violation, it would have been harmless. (Supreme Court, Kings County, Decision at 6-7 (July 12, 1991)). Based on the testimony by other witnesses corroborating the testimony of this witness and based on the admissions of the witness during cross-examination about her propensity for passing bad checks, the court's finding that the convictions of the witness would not have altered the outcome of the trial is reasonable.
2. Prosecution Failed to Prove Co-Defendant's Guilt at Petitioner's Trial
This claim was one of the six issues petitioner raised on appeal from conviction. The Appellate Division affirmed defendant's judgment of conviction. People v. McDonald, 231 A.D.2d 647 (N.Y.App.Div. 1996). In deciding whether the lack of evidence regarding the conduct of the co-defendant violated petitioner's due process rights, the court held that the claim was both unpreserved for appellate review and without merit. Id. Notwithstanding the procedural default, the Appellate Division's decision was neither contrary to nor an unreasonable application of clearly established federal law. Evidence of guilt was substantial and adequate.
3. Trial Counsel Was Ineffective
Petitioner first raised this claim in his motion dated October 29, 1997 pursuant to section 440.10. State prisoners are required to exhaust available state remedies as to any federal claims before seeking a federal habeas petition. Jelinek, 2003 U.S. Dist. LEXIS 2775, at * 105; see also Rose v. Lundy, 455 U.S. 509, 522 (1989). Exhaustion requires petitioners to have presented "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc), quoted in Jelinek, 2003 U.S. Dist. LEXIS 2775, at * 105. Where petitioner's claim for habeas corpus includes more deficiencies than were before the state court, the petition is unexhausted, Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991), but where "an additional factual claim in support of the ineffective-assistance allegation merely `supplements' the ineffectiveness claim and does not `fundamentally alter' it, dismissal is not required." Jelinek, 2003 U.S. Dist. LEXIS 2775, at *120 (citing Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Because the ineffective assistance of counsel claims that petitioner raises in the instant habeas petition are not identical to those he raised in his section 440.10 motion, the court must decide whether the additional allegations supplement or fundamentally alter the claim as it was presented in state court.
Petitioner listed the following factors as the basis for his original claim:
1. Failure to investigate and present a defense generally including the following: failure to demand and utilize the results of the hair analysis, failure to request a sanction pursuant to CPL 240.70, failure to perform a report on petitioner's financial transactions, reliance on the prosecution's representation that a key witness had no prior convictions rather than conducting a background check with the National Crime Information Center, failure to introduce the sketch of the perpetrator to show that the perpetrator was not the co-defendant, failure to object to and move to strike inadmissible evidence;
2. Failure to object to restriction of his cross-examination of the daughter concerning the relationships the deceased had with other men;
3. Failure to present a claim of insufficiency of the evidence;
4. Failure to object to the District Attorney changing the theory of the indictment during the trial;
5. Failure to object to the court's presumption of innocence charge;
6. Failure to object to the acting in concert charge the court gave to the jury;
7. Failure to object to the court's failure to charge that two of the witnesses were accomplices as a matter of law; and
8. Failure to object to the lesser degree of proof instructed by the court.
This motion was denied in a decision by the trial court stating, "[t]he Court has reviewed the submissions on this motion and can find no basis in either law or equity to set aside defendant's conviction."
Petitioner's present claim resubmits the following reasons for the claim:
1. Failure to investigate and present a defense including the following: failure to demand and utilize the results of the hair analysis, failure to investigate Elizabeth Putnam's criminal history, failure to use the neighbor's description of the perpetrator to show that the co-defendant was not the perpetrator;
4. Failure to object when the prosecution made a material variance in his summation to the jury;
5. Failure to object to the court's presumption of innocence charge;
6. Failure to object to the acting in concert charge the court gave to the jury;
7. Failure to object to the court's accomplice charge; and
8. Failure to object to the court's charge to the jury regarding reasonable doubt.
He submits the following additional allegations:
(a) Failure to object when the prosecutor improperly vouched for the credibility of the expert witness;
(b) Failure to request the retesting of co-defendant's hair;
(c) Failure to investigate the co-defendant's alibi; and
(d) Failure to make use of the following information: that there were fingerprints that did not belong to any family member or the co-defendant, and that the witness who testified to seeing a man on the stoop of petitioner's house could not identify the co-defendant from a photo line-up.
To the extent that these "new" allegations were not properly presented to the state court and, therefore, were not exhausted, the court may exercise its discretion to deny a petition that contains unexhausted claims based on the merits. See 28 U.S.C. § 2254(b)(2); see also Jelinek, 2003 U.S. Dist. LEXIS 2775, at *106.
All of petitioner's ineffective assistance of trial counsel claims are without merit. To prevail on an ineffective assistance claim, petitioner must show "both that counsel's representation `fell below an objective standard of reasonableness' measured under `prevailing professional norms,' [ Strickland v, Washington, 466 U.S. 668, 688 (1984)], and that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,' id. at 994. See also United States v, Eyman, 313 F.3d 741, 743 (2d Cir. 2002)." Jelinek, 2003 U.S. Dist. LEXIS 2775, at *111. Under that standard, none of petitioner's allegations rise to the level of a Sixth Amendment violation.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697.
Whether or not trial counsel erred in failing to utilize the results of the hair analysis, failing to investigate Elizabeth Putnam's criminal history, and failure to use the neighbor's description of the perpetrator to show that the co-defendant was not the perpetrator, these omissions would not have changed the verdict. Based on the facts that were in evidence, there was overwhelming evidence of petitioner's guilt. Neither adding information about the hairs found on the victim nor undermining the significance of the neighbor's testimony about seeing the perpetrator would have exonerated petitioner. As the Supreme Court, Kings County, decided, testimony corroborating Elizabeth Putnam's testimony and her own testimony about her propensity for passing bad checks meant that knowledge of Putnam's criminal charges in Florida would not have changed the jury verdict.
Petitioner's argument that prosecution made a material variance is without merit. According to the court in Jelinek, "[t]here is an unconstitutional variance in violation of the New York constitution when the state's proof at trial contradicts the elements described in the indictment and bill of particulars. . . . If the variance between an indictment and the state's proof at trial is immaterial and results in no surprise or prejudice to the defendant, it is not cause for reversal of a conviction." Jelinek, 2003 U.S. Dist. LEXIS 2775, at *126-28 (citations omitted).
In this case, the indictment said that petitioner and the co-defendant "each aiding the other, on or about June 26, 1985 in the County of Kings, with intent to cause the death of Dolores McDonald, caused the death of Dolores McDonald by means of strangulation and beating her with a blunt instrument, thereby inflicting various wounds and injuries. . . . And thereafter . . . Dolores McDonald died of the wounds and injuries." [Tr. 10]. The indictment also sets forth the charge of the conspiracy, but neither charge indicates that the co-defendant was the individual who actually strangled and beat the victim. The statement of the prosecutor in summation indicated that petitioner was on trial rather than the co-defendant and stated "The issue you have to decide is did this defendant, whoever that killer was, direct or hired [sic] him to commit this crime." [Tr. 1042]. This is not a clear variance and should not have affected petitioner's ability to mount a defense. Even if counsel should have objected to this alleged variance, the error was harmless.
Petitioner's arguments that counsel failed to object to four of the court's jury charges are without merit. In weighing the prejudice from an allegedly improper charge, the court looks at "whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). Petitioner argues that the presumption of innocence and reasonable doubt charges were improper and that trial counsel should have objected to them. Petitioner objects to the statement, "[m]ind you, the law does not say that in a criminal case he is innocent, he is presumed to be innocent" in the presumption of innocence charge. [Tr. 106O]. In addition to that statement, however, the court explained the presumption of innocence by saying that the presumption of innocence "prevails until it is rebutted to your satisfaction beyond a reasonable doubt." [Tr. 1060]. The court also described the presumption of innocence as a mantle that descends upon the defendant when he or she pleads not guilty. [Tr. 1059].
The court's reasonable doubt charge defined reasonable doubt as "grounded in reason," [Tr. 1060], explained that it may be a reasonable doubt even though "you may not be able to articulate the reason," [Tr. 1061], but explained that the law does not demand proof of guilt beyond all doubt and that the reasonable doubt language must not be seized upon "as an excuse to perform an unpleasant duty." [Tr. 1061], The court explained to the jury, "unless you are satisfied beyond a reasonable doubt that the presumption of innocence has been overcome or rebutted you must return a verdict of not guilty." [Tr. 1059]. Looking at the charge in its total context as required by law, neither charge violated due process. Cupp v. Naughten, 414 U.S. at 146-47. Even if failure to object fell below the objective standard of reasonableness, an objection would not have created a different result.
Petitioner also argues that the acting in concert charge and the accomplice charge were improper and that the failure of trial counsel to object to them rendered his assistance ineffective. In his appeal, petitioner raised these claims, as well as the presumption of innocence and reasonable doubt claims, directly as fundamental errors in the trial judge's charge violating his due process rights. The appellate court found that these claims were without merit. People v. McDonald, 231 A.D.2d at 647. In the court's acting in concert charge, it makes it sound as though the jury only needs to find intent for either the petitioner or the co-defendant but not both. [Tr. 1062]. The court does say later, however, that "an accessory or aider or abettor must share the intent of the principal actor before he may be liable for the crime. And you, as fact finders, must determine whether or not the defendant acted in concert as to each count of the indictment." [Tr. 1067-A]. Looking at the jury charge as a whole, the charge does indicate that petitioner had to have the requisite intent. Furthermore, the jury's finding that petitioner was guilty of conspiracy required them to find that petitioner intended to kill his wife, and therefore the error in the charge was harmless.
Petitioner also argues that trial counsel should have objected to the court's decision to present the question of whether two witnesses were accomplices to the jury as an issue of fact rather than telling the jury that the two witnesses were accomplices as a matter of law. Whether a witness is an accomplice as a matter or law or fact depends on whether "the undisputed evidence establishes that a witness is an accomplice." People v. Bosch, 36 N.Y.2d 154, 157 (N.Y. 1975). There was sufficient disputed evidence to leave the question of whether Jacqueline Pascalli was an accomplice for the jury to decide. Even if the court was wrong in leaving the question of whether Elizabeth Putnam was an accomplice for the jury to decide, the error would have been harmless, because "[t]he purpose of the requirement [for accomplice corroboration] is not to establish defendant's guilt independently but to provide some basis for the jury to conclude the accomplice testimony is credible. . . . Independent evidence need not be offered to establish each element of the offense or even an element of the offense; the People's burden is merely to offer some nonaccomplice evidence `tending to connect' defendant to the crime charged." People v. Besser, 96 N.Y.2d 136, 143-44 (N.Y. 2001) (citations omitted). Therefore, even if trial counsel should have objected, the assistance was not ineffective for purposes of granting a federal writ of habeas corpus.
Petitioner's "new" claims are all without merit because none of them would have changed the outcome of the trial. Three of the alleged errors relate to exonerating the co-defendant and, by implication, the petitioner, and the fourth relates to prosecutorial misconduct in summation. None of the above are significant in light of the amount of evidence supporting they jury's finding that petitioner was guilty.
4. Appellate Counsel Was Ineffective
Petitioner moved in the Appellate Division for a common law writ of error coram nobis on the ground of ineffective assistance of appellate counsel based on appellate counsel's failure to bring an ineffective assistance of trial counsel claim for petitioner. The Appellate Division denied the motion on the merits. People v. McDonald, 267 A.D.2d 406 (N.Y.App.Div. 1999). Petitioner raises the same claim in his petition for a writ of habeas corpus.
Appellate counsel for petitioner raised six claims, and it was a reasonable professional judgment for appellate counsel not to raise a seventh claim that was not stronger than the other claims, and that would potentially dilute the strength of the other claims. Jones v. Barnes, 463 U.S. 745, 751-54 (1983). Furthermore, since trial counsel was not ineffective, appellate counsel cannot be ineffective for failing to bring an ineffective assistance of trial counsel claim. Therefore, appellate counsel was not ineffective.
5. Evidence Was Legally Insufficient to Establish Defendant's Guilt
This claim was one of the six issues petitioner raised on appeal from conviction. The Appellate Division affirmed defendant's judgment of conviction. McDonald, 231 A.D.2d at 647, The court found that "[t]he defendant's claim that the evidence against him was legally insufficient is unpreserved for appellate review ( see, CPL 470.05 [2]). In any event, viewing the evidence in the light most favorable to the prosecution ( see, People v. Contes, 60 N.Y.2d 620), we find that it was legally sufficient to establish the defendant's guilt beyond a reasonable doubt," This claim may be procedurally barred. See Jelinek v. Costello, 2003 U.S. Dist. LEXIS 2775, at * 106-07 (default based on an adequate and independent state procedural rule is not subject to review in a habeas corpus proceeding). Whether or not it is procedurally barred, it is without merit, See Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Conclusion
Section 440.30(l-a) tolls the limitation period under AEDPA. The language of the statute designates motions for DNA testing as akin to section 440.10 motions to vacate a judgment. Section 440.10 motions challenge prisoners' convictions and therefore the AEDPA limitation period is tolled during a 440.30(l-a) motion as if it were a section 440.10 proceeding. DNA is such a powerful tool to prove innocence-as well as guilt-that federal law should not inhibit its use in state prosecutions and state post-conviction proceedings.
The tolling periods of petitioner's state motions overlapped and tolled the limitation period for several years. This application for federal habeas corpus review was timely filed. The court may reach the other claims.
Petitioner's argument that the denial of his section 440.30(l-a) motion was a violation of his right to due process is without merit. It does not support the granting of a writ of habeas corpus.
None of petitioner's remaining claims have merit. The petition for a writ of habeas corpus is denied. Petitioner received a fair trial. Innocence is not a substantial issue.
A certificate of appealability is granted on the issue of whether DNA testing should have been ordered. Petitioner may seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.