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denying petitioner's ineffectiveness claim relating to petitioner's failure to testify before the grand jury; "the right to testify before a grand jury is purely a state statutory right, and claims of deficiencies in a state grand jury proceeding are not cognizable in a federal habeas petition"
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9:98-CV-1915 (LEK)(GLS)
April 19, 2002
FOR THE PETITIONER: JAMES B. McMOORE, Petitioner, Pro Se, Great Meadow Correctional Facility, Comstock, NY.
FOR THE RESPONDENT:, HON. ELIOT SPITZER, Office of the Attorney General, OF COUNSEL: G. LAWRENCE DILLON, ESQ., Asst. Attorney General, State of New York, Utica, NY.
ORDER and REPORT-RECOMMENDATION
I. Background
Petitioner, pro se, James B. McMoore ("McMoore") filed a petition for habeas corpus pursuant to 28 U.S.C. § 2254 on December 14, 1998 (Dkt. No. 1). On January 21, 1999, U.S. District Judge Lawrence E. Kahn issued an order directing McMoore to file an amended petition (Dkt. No. 6) ("January 1999 Order"), and on February 8, 1999, McMoore filed what he claims to be an amended petition (Dkt. No. 8). This court reviewed that pleading in conjunction with the original petition and because viewing them collectively they required a response, the court issued an order that directed the Office of the Attorney General for the State of New York ("Attorney General") to file a response pursuant to the rules governing Section 2254 cases in the United States District Courts, 28 U.S.C. foll. § 2254 (Dkt. No. 9). The Attorney General filed an answer and memorandum of law requesting dismissal of the petition (Dkt. Nos. 12-13), to which McMoore filed a reply (Dkt. No. 14).
McMoore's amended pleading merely addresses the issue raised by Judge Kahn in his January, 1999 Order and is not a complete pleading. McMoore is advised that, in the future, a complete pleading, rather than piecemeal submissions, are to be filed in all actions maintained in this District. See e.g., Local Rule 15.1(a).
II. Discussion
A. State Court Proceedings
The testimony at trial revealed that on September 11, 1990, McMoore arrived in Kingston, New York, to meet some friends and sell drugs. See Transcript of Trial of McMoore (1/15/91) ("Tr.") at PP. 298-99. McMoore went into the apartment of one of his relatives and he and Rodney Best ("Best") "bagged up" some crack cocaine for sale. Id. at PP. 300-01. Best left the apartment, but he returned after Leroy Rennie ("Rennie"), another drug dealer, informed Best that Rennie did not want Best to sell any drugs in the area. Id. at 302. Best informed McMoore of that conversation, Id., who then left the apartment looking for Rennie. Upon finding Rennie, McMoore stated "there is enough money for every fucking body. What the fuck you mean he can't sell drugs?" Id. at P. 303. An argument ensued, and although Rennie was holding clothes in his hand and made no sudden movements with his body or hands, McMoore pulled a pistol out of his waistband, placed it against Rennie's head, and pulled the trigger (Id. at PP. 304, 430-31). Rennie fell to the ground, mortally wounded. Id. at P. 304. Upon arriving at the scene, the police apprehended and arrested McMoore. Id. at PP. 561-64.
On September 12, 1990, McMoore was arraigned on a felony complaint before Judge Edward T. Feeney without counsel. See Report of the Hon. Dan Lamont ("Judge Lamont") (1/10/95) ("January 1995 Report") at P. 4. Later that same day, Assistant District Attorney John W. Prizzia ("Prizzia") hand delivered a notice to the Public Defender's Office ("PDO") which stated that the District Attorney's office would be presenting information relating to the shooting to an Ulster County Grand Jury on Friday, September 14, 1990. Id.; Respondent's Appendix in Opposition to Appeal ("R.App.") at P. RA3. The District Attorney also served the PDO with an Order to Show Cause signed by Judge Joseph Torraca requiring, inter alia, McMoore to participate in a line-up at the Ulster County Jail on September 13, 1990. Id. at PP. RA4-5. An investigator from the PDO was present with McMoore as he participated in the court-ordered line-up (January 1995 Report at P. 5).
In federal habeas review, the factual determinations of the state court "shall be presumed to be correct." 28 U.S.C. § 2254(e)(1); Mask v. McGinnis, 233 F.3d 132, 139 (2d Cir. 2000). As is discussed more fully below, the Court adopts Judge Lamont's findings because McMoore has failed to rebut this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Correa v. Duncan, 172 F. Supp.2d 378, 382 (E.D.N.Y. 2001) (citing Morris v. Reynolds, 264 F.3d 38, 45 (2nd Cir. 2001)).
The PDO assigned Holley Carnright, Esq. ("Carnright") to McMoore's case. She met with the defendant on September 14, 1990, and although McMoore initially indicated that he wished to testify before the grand jury, Carnright advised McMoore against testifying because McMoore had provided the police with a statement that would be admissible against him at that proceeding. Id. at P. 5; Transcript of Reconstruction Hearing before Judge Lamont (12/1/94) ("Reconstruction Tr.") at P. 36. McMoore eventually acquiesced and decided that he would not testify (January 1995 Report at PP. 5-6).
On September 20, 1990, an Ulster County Grand Jury issued an Indictment charging McMoore with second degree murder and third degree criminal possession of a weapon (see Indictment No. 158-90). The next day, McMoore, accompanied by Paul Gruner, Esq. ("Gruner") of the PDO, was arraigned on the Indictment in Ulster County Court (see January 1995 Report at P. 6).
On January 15, 1991, prior to opening statements, the Hon. Francis J. Vogt ("Judge Vogt") conducted a Sandoval hearing (Tr. at PP. 246-253). The prosecution then presented its case against McMoore and, after the People rested on January 22, 1991, a second Sandoval hearing was conducted in Judge Vogt's chambers at which time McMoore was not present (Tr. at PP. 628-30).
People v. Sandoval, 34 N.Y.2d 371 (1974).
McMoore claims that he was not present at this hearing (Reconstruction Tr. at PP. 63-64), while Prizzia testified that McMoore was present. (Id. at PP. 55-56).
At the second hearing, defense counsel reargued the position advanced in the earlier Sandoval hearing held on January 15, 1991. People v. McMoore, 214 A.D.2d 893 (3rd Dep't 1995).
McMoore testified and claimed that he killed Rennie in self-defense. The jury found McMoore not guilty of second degree murder, but guilty of the lesser included offense of first degree manslaughter as well as the weapons possession charge. Id. at PP. 837-38. On March 5, 1991, Judge Vogt sentenced McMoore as a persistent violent felony offender to an indeterminate term of imprisonment of twenty years to life. McMoore appealed to the Third Department, Appellate Division, ("Appellate Division") and, while his appeal was pending, filed a motion to vacate his conviction pursuant to Section 440.10 of New York's Criminal Procedure Law ("CPL"), alleging ineffective assistance of trial counsel. Judge Vogt denied the CPL § 440 motion, and McMoore was granted leave to appeal that decision to the Appellate Division.
On April 7, 1994, the Appellate Division found:
Factual issues exist as to whether defendant's attorney received notice of the scheduled Grand Jury presentment and informed defendant of his right to testify, whether defendant declined to testify or, if defendant was not so advised, why no motion was made to dismiss the indictment when it was learned that defendant did not receive notice of the Grand Jury presentment.
* * *
Defendant also contends that he was denied his right to the effective assistance of counsel when defense counsel waived, without his knowledge or consent, his presence at a second Sandoval . . . conference conducted in chambers at the close of the People's proof. [Since] the record is equivocal as to whether he was present at the earlier Sandoval hearing when the use of his prior criminal acts was discussed, we cannot ascertain whether this is one of those exceptional situations in which the accused's presence would have been wholly superfluous.
McMoore, 203 A.D.2d at 614 (citations and internal quotations omitted). Therefore, the Appellate Division directed the County Court to hold a reconstruction hearing to determine: (1) the circumstances of McMoore's waiver of his right to testify before the grand jury; and, (2) whether defendant was present at the initial Sandoval hearing. McMoore, 203 A.D.2d at 615.
Pursuant to the Appellate Division's instruction, Judge Lamont held a reconstruction hearing on these issues on December 1, 1994. He then issued his January 1995 Report in which he found that the defendant had waived his right to testify before the grand jury, Id. at P. 7, and the credible evidence before him indicated that McMoore was present at the initial Sandoval hearing. Id. at P. 8.
Since Judge Vogt had retired from County Court, Judge Lamont was assigned to conduct the reconstruction hearing.
After receipt of Judge Lamont's report, the Appellate Division affirmed. People v. McMoore, 214 A.D.2d 893 (3rd Dep't 1995), and the Court of Appeals denied McMoore leave to appeal. People v. McMoore, 86 N.Y.2d 798 (1995), cert. denied., McMoore v. New York, 516 U.S. 1096 (1996).
B. Timeliness of Petition
Respondent initially argues that the petition is time barred under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") (Dkt. No. 13 at PP. 9-10).
As amended by the AEDPA, 28 U.S.C. § 2244(d) now reads:
(1) A one year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State Court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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 any period of limitation under this subsection.
"[T]he limitations period for state prisoners [under the AEDPA] begins to run only after the denial of certiorari by the United States Supreme Court." Williams v. Artuz, 237 F.3d 147, 151 (2d Cir.), cert. denied, ___ U.S. ___, 122 S.Ct. 279 (2001). In this case, the Supreme Court denied McMoore's application for certiorari on January 22, 1996. See McMoore v. New York, 516 U.S. 1096 (1996). On August 21, 1996, McMoore filed a habeas petition in state court challenging his conviction (Dkt. No. 8 at ¶ 12). By that time, 212 days of the one year limitation period had run. The filing of his state habeas petition, however, tolled the statute of limitations. See Fernandez v. Artuz, 175 F. Supp.2d 682, 687 (S.D.N.Y. 2001) (statute of limitations is tolled during pendency of state habeas petition); Forman v. Artuz, 2000 WL 378056, at *4 (S.D.N.Y. Apr. 11, 2000) (Peck, M.J.), adopted, 2000 WL 1099935 (S.D.N.Y. June 14, 2000).
According to McMoore, the denial of his state habeas petition was affirmed by the Appellate Division on January 8, 1998 (Dkt. No. 8 at ¶ 13), and the Court of Appeals denied McMoore leave to appeal on April 7, 1998 (Id. at ¶ 14).
Prior to the expiration of the time during which McMoore could have sought a writ of certiorari from the Supreme Court regarding the denial of his application for leave to appeal issued by the Court of Appeals, he filed a writ of error coram nobis with the Appellate Division (Id. at ¶ 15). That application was denied on August 4, 1998 (Id. at ¶ 15). Since no other state court challenges were filed by McMoore, he had 153 days from that date — or until January 4, 1999 — within which to timely commence this action. Since McMoore's original petition was received by the Clerk's Office on December 14, 1998 (Dkt. No. 1 at P. 1), this action cannot be dismissed as untimely.
C. Standards of Review
Prior to addressing the merits, the court addresses the standards of review now employed when considering federal habeas petitions.
Enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996), brought about significant new limitations on federal power to grant habeas relief to a state court prisoner under 28 U.S.C. § 2254. Those new standards apply to petitions filed after the AEDPA's effective date even though they relate to convictions which predate enactment of the AEDPA. Williams v. Taylor, 529 U.S. 362, 402 (2000); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001).
Under the AEDPA, a federal court may not grant habeas relief to a state prisoner on a claim that was adjudicated on the merits in state court proceedings unless 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 a unreasonable determination of the facts in light of the evidence presented in the state court proceeding.28 U.S.C. § 2254(d); see also, Noble v. Kelly, 246 F.3d 93, 98 (2d Cir. 2001), cert. denied, ___ U.S. ___, 122 S.Ct. 197 (2001); Boyette, 246 F.3d at 88. The AEDPA also requires that, in federal habeas proceedings, "a determination of a factual issue made by a state court shall be presumed to be correct [and t]he applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1); see also, Boyette, 246 F.3d at 88 (quoting § 2254(e)(1)) (internal quotations omitted).
The Second Circuit has provided additional guidance concerning application of this test, noting:
[u]nder AEDPA, we ask three questions to determine whether a federal court may grant habeas relief: 1) Was the principle of Supreme Court case law relied upon in the habeas petition "clearly established" when the state court ruled?; 2) If so, was the state court's decision "contrary to" that established Supreme Court precedent?; and, 3) If not, did the state court's decision constitute an "unreasonable application" of that principle?
Williams v. Artuz, 237 F.3d 147, 152 (2d Cir. 2001) (citing Williams and Francis S. v. Stone, 221 F.3d 100, 108-09 (2d Cir. 2000)).
The AEDPA's standards of review only apply to federal claims which have been adjudicated on the merits in the state court. Washington v. Shriver, 255 F.3d 45, 52-55 (2d Cir. 2001). In these circumstances, deference is required even though the state court's decision lacks explicit reference to the federal claim or to federal case law. Sellan v. Kuhlman, 261 F.3d 303, 311-12 (2d Cir. 2001). As that court explained:
the plain meaning of § 2254(d)(1) dictates our holding: 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.
Sellan, 261 F.3d at 312 (emphasis added).
Once the federal court has determined that the state court's decision has been decided "on the merits", the federal court may find that the state court's decision is "contrary to" established Supreme Court precedent only if the state court applied a rule that contradicts Supreme Court precedent, or decided a case differently than the Supreme Court on a set of materially indistinguishable facts. Taylor, 529 U.S. at 405-06. Finally, in determining whether the decision was an "unreasonable determination" in light of the evidence presented, the federal court is not to determine whether the state court's finding was merely incorrect or erroneous, but instead whether it was "objectively unreasonable". Id. at 409; see also, Sellan, 261 F.3d at 315. This inquiry admits of "[s]ome increment of incorrectness beyond error," though "the increment need not be great[.]" Francis S., 221 F.3d at 111.
D. Merits of Petition
McMoore claims: (1) he was denied his right to be properly arraigned; (2) he received ineffective assistance of trial counsel; (3) he was denied his right to be present at all critical stages of his trial; (4) he was denied his right to testify before the grand jury; (5) Judge Vogt's jury charge on the defense of justification deprived McMoore of a fair trial; and, (6) he was denied effective assistance of appellate counsel.
1. Arraignment
McMoore argues that when he appeared before Judge Feeney for the arraignment on September 12, 1990, the proceeding was adjourned because McMoore did not have an attorney and there was no court stenographer present. See Memorandum in Support of Petition (Dkt. No. 2) ("Supporting Mem.") at P. 1. He then argues that his arraignment was never completed, and that "as of the date of this application he has never been arraigned on the felony complaint" (Id. at P. 2).
The respondent did not address this argument in opposing the petition and in his traverse, McMoore argues that the Attorney General has conceded his argument that the trial court never obtained jurisdiction over him because he was never arraigned, and that "the remedy is petitioner's immediate release from his unlawful and illegal confinement" (Dkt. No. 14 at PP. 1-2).
To the extent McMoore claims he was never arraigned after his initial arraignment was postponed, this claim is contrary to the evidence. At the reconstruction hearing, Carnright testified that McMoore was arraigned, but that he could not definitively state whether he or Gruner accompanied McMoore at that time. Reconstruction Tr. at P. 41. Moreover, McMoore himself testified at that hearing that he was subsequently arraigned on the charges with counsel present. Specifically, McMoore testified as follows to the questions posed to him by his then-counsel Marshall Nadan:
Q. So the next time you recall appearing in court following your city court appearance would have been on the arraignment in Ulster County Court?
A. Now I have learned that it was an arraignment in Ulster County Court, but then, honestly, I stood in the courtroom for maybe under a minute and was whisked right back to jail.
Q. You subsequently learned that was an arraignment in Ulster County Court?
A. I learned that through the newspapers.
Q. That was following the city court appearance?
A. Yes.
Reconstruction Tr. at PP. 68-69.
Based upon the testimony at the reconstruction hearing, Judge Lamont found that McMoore was arraigned in Ulster County Court "on or about September 21, 1990" (January 1995 Report at P. 6). This factual finding is presumed to be correct, and a petitioner is required to rebut this presumption by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Mask, 233 F.3d at 139. Thus, McMoore's arraignment was completed, with counsel, following the adjournment of his initial arraignment before Judge Feeney, and McMoore's claim that he was never properly arraigned is without merit.
Furthermore, McMoore's contention that the County Court never acquired jurisdiction over him is without substance. Once a valid indictment is returned by a grand jury, the defendant is required "to proceed to trial with respect to [the] identified criminal transaction." People v. Ford, 62 N.Y.2d 275, 282 (1984); see People v. Penasso, 142 A.D.2d 691, 693 (2nd Dep't) (court obtains jurisdiction over defendant upon filing of indictment) (citing CPL §§ 10.20, 200.10), leave denied, 72 N.Y.2d 1048 (1988).
Since McMoore has not provided evidence that: (a) he was never properly arraigned on the charges; or, (b) the County Court never obtained jurisdiction over him, the court recommends that the first Ground in the petition be denied.
2. Ineffective Assistance of Counsel
In this claim, McMoore argues that he was "not afforded counsel during the critical stages of the proceedings" (Supporting Mem. at PP. 5-7). Specifically, he argues that "trial counsel was not present during the arraignment on the felony complaint, the arraignment on the indictment, nor [sic] the court ordered line-up at the Ulster County Jail" (Dkt. No. 14 at P. 9). He also argues that he received ineffective assistance because his attorney waived McMoore's right to testify before the grand jury without McMoore's consent (Dkt. No. 14 at P. 10).
The Supreme Court has held that violations of the Sixth Amendment right to counsel are per se reversible only when they amount to an "'[a]ctual or constructive denial of the assistance of counsel altogether,'" Penson v. Ohio, 488 U.S. 75 (1988) (quoting Strickland v. Washington, 466 U.S. 668, 692 (1984)), or when counsel was "prevented from assisting the accused during a critical stage of the proceeding," United States v. Cronic, 466 U.S. 648, 659 n. 25 (1984); Dallio v. Spitzer, 170 F. Supp.2d 327, 337 (E.D.N.Y. 2001). Where the violation is not per se reversible, courts typically employ a harmless error analysis in determining whether a Sixth Amendment claim warrants relief. Lainfiesta v. Artuz, 253 F.3d 151, 157 (2d Cir. 2001).
At McMoore's initial arraignment on the felony complaint, he was not represented by counsel. At that proceeding, Judge Feeney recorded McMoore's not guilty plea and ordered that he be held without bail. See R.App. at PP. RA1-2. When McMoore requested counsel, Judge Feeney re-scheduled the balance of the arraignment for a later date. See Id.; Reconstruction Tr. at P. 4. Critical stages of a criminal proceeding include arraignments where rights are sacrificed or lost. Grune v. Thoubboron, 1995 WL 130517, at *1 (S.D.N.Y. Mar. 24, 1995); United States v. Wade, 388 U.S. 218, 225 (1967). Since Judge Feeney terminated the initial arraignment once McMoore indicated he desired counsel, and McMoore did not sacrifice or lose any of his rights at that arraignment, that proceeding was not "critical" and the absence of counsel at that hearing cannot form the basis of habeas relief.
On September 13, 1990, McMoore participated in the court-ordered line-up at the Ulster County Jail (January 1995 Report at P. 5). McMoore's attorney was not present at the line-up; instead, an investigator from the PDO was present with him at that time. McMoore, 214 A.D.2d at 894. Although a defendant's right to counsel is arguably violated if the defendant's attorney is not present when police conduct a line-up including the defendant, see Norman v. People of State of New York, 1999 WL 983869, at *6 (S.D.N.Y. Oct. 29, 1999) (citing Wade, 388 U.S. at 235), a court must determine whether the absence of the defendant's attorney was nevertheless harmless under the circumstances. See Norman, 1999 WL 983869, at *6 (citing Moore v. Illinois, 434 U.S. 220, 232 (1977)).
The absence of McMoore's counsel at the line-up was harmless for two reasons. First, McMoore's defense was not based upon a claim that he did not shoot Rennie. To the contrary, McMoore admits that "[o]n September 11, 1990, at approximately 3:40 p.m., petitioner shot and fatally wounded one Leroy Rennie . . ." (Supporting Mem. at P. 2). Since the identification of McMoore was not an issue at trial, the admission of the line-up evidence as well as the in court identifications of those witnesses who viewed the line-up, was necessarily harmless. See e.g., People v. Travison, 46 N.Y.2d 758, 759-60 (1978), cert. denied, 441 U.S. 949 (1979) (even if pretrial photo identification and line-up procedures were illegal, denial of suppression motion harmless error because "question of identity was not put in issue"); People v. Peoples, 142 A.D.2d 610 (2d Dep't 1988) (although pretrial identification of defendant was improper, error harmless where identification not an issue). Second, McMoore does not challenge the line-up procedure itself but instead only claims that the proceeding was improper because his counsel was not present. However, where there is no evidence that the identification of the defendant at either the line-up or in court was the result of suggestiveness which created a "substantial likelihood of misidentification," habeas relief on such a claim is unavailable. Meadows v. Kuhlmann, 644 F. Supp. 757, 760 (E.D.N.Y. 1986) (citing Neil v. Biggers, 409 U.S. 188, 198 (1972)), aff'd, 812 F.2d 72 (2d Cir.), cert. denied, 482 U.S. 915 (1987); Mysholowsky v. People of State of N.Y., 535 F.2d 194, 197 (2d Cir. 1976).
McMoore also claims he never met with counsel before he was arraigned on the indictment in County Court on September 21, 1990 (Supporting Mem. at PP. 8-9). However, Carnright testified at the reconstruction hearing that prior to September 21, 1990, he met with McMoore and discussed his desire to testify before the grand jury (Reconstruction Tr. at PP. 36-37, 45-46). Additionally, Gruner appeared with McMoore at his arraignment in Ulster County Court on or about September 21, 1990. Id. at PP. 41-42; (January 1995 Report at P. 6). After the reconstruction hearing, Judge Lamont concluded that: (a) Carnright met with McMoore a week prior to the District Attorney's presentation of his case to the grand jury; and, (b) Gruner was with McMoore at his arraignment in Ulster County Court (January 1995 Report at PP. 5-6). Since McMoore has not rebutted these findings by clear and convincing evidence, this court finds that he met with his counsel prior to being arraigned on the Indictment and that another member of the PDO represented him at the arraignment. Therefore, he was not denied counsel at that proceeding, and he is not entitled to habeas relief on this aspect of his petition.
McMoore's ineffectiveness claim concerning his failure to testify before the grand jury fails for two reasons. First, he has not presented clear and convincing evidence which indicates that Judge Lamont erred when he found that McMoore ultimately agreed with counsel's advice not to testify before the grand jury. Id. at P. 5. Since Carnright offered a strategic reason for his advice, see Reconstruction Tr. at PP. 46-47, McMoore's ineffectiveness claim on this theory must fail. Strickland, 466 U.S. at 689. Second, the right to testify before a grand jury is purely a state statutory right, and claims of deficiencies in a state grand jury proceeding are not cognizable in a federal habeas petition. See Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989); Green v. Artuz, 990 F. Supp. 267, 273 n. 8 (S.D.N.Y. 1998) (petitioner's claim that he was denied right to testify before grand jury not cognizable in § 2254 proceeding); Paris v. Barkley, 1998 WL 160829, at *5 (Apr. 3, 1998) (Pooler, D.J.).
3. Right to be Present During Critical Stages of Trial
McMoore argues that he was wrongfully denied the right to be present during critical stages of the criminal proceedings below (Supporting Mem. at P. 10). Specifically, he claims that he was not present during either of the two Sandoval hearings held by Judge Vogt, and that as a result, he was deprived of the opportunity to meaningfully participate in his defense. Id. at PP. 10-14. He argues that "[t]here is no support in the record below which sustains the People's position that petitioner was present during his first Sandoval hearing" (Supporting Mem. at P. 12). Also, McMoore argues that both Judge Lamont and the Appellate Division wrongfully credited the testimony of Prizzia, who testified that McMoore was present at the first hearing. Id.; see also, Reconstruction TR. at PP. 55-59. McMoore further claims that his attorney improperly waived his right to be present at the second Sandoval hearing because "the facts underlying a prior drug arrest of petitioner's [sic] was discussed at that hearing" (Supporting Mem. at P. 13).
The purpose of a Sandoval hearing is to provide a prospective ruling on the prosecutor's use of a defendant's prior criminal acts for impeachment purposes. Miller v. Portuondo, 151 F. Supp.2d 245, 247 (E.D.N.Y. 2001) (citing Sandoval, 34 N.Y.2d at 372).
A criminal defendant has a right to be present at all material stages of trial. Clark v. Stinson, 214 F.3d 315, 322 (2d Cir.) (citations omitted), cert. denied, 531 U.S. 1116 (2001). This right stems from an individual's Sixth Amendment right to confront witnesses, and his due process right to attend hearings in which he is not actually confronting witnesses or evidence against him. See Kentucky v. Stincer, 482 U.S. 730, 745 (1987); United States v. Gagnon, 470 U.S. 522, 526 (1985).
Both Judge Lamont and the Appellate Division specifically found that McMoore was present during the first Sandoval hearing held by Judge Vogt. See January 1995 Report at P. 8; McMoore, 214 A.D.2d at 894. McMoore has not established by clear and convincing evidence that this factual finding constituted error. Absent such evidence, this aspect of McMoore's claim must fail.
The Appellate Division found that because the second Sandoval hearing was not a de novo hearing, but rather one where McMoore's presence would have been wholly superfluous, McMoore, 214 A.D.2d at 894, McMoore's presence at that hearing was unnecessary. Id.
Although McMoore argues that his presence was required, see Supporting Mem. at P. 13, the record reveals that his counsel characterized the second Sandoval hearing as one in which counsel was "rearug[ing] or restat[ing] the defense position in this matter" (Tr. at PP. 628-29). Since McMoore has not provided any evidence which demonstrates that there was any potential for meaningful input from him during that hearing, it was not a material stage requiring his presence, and his absence from that hearing cannot form the basis for habeas relief.
To the extent McMoore alleges his trial attorney was ineffective because he waived his presence at that hearing (Dkt. No. 14 at P. 4), since McMoore's presence was superfluous, counsel cannot be found to have rendered ineffective assistance by waiving his presence.
In light of the foregoing, the Court recommends that this Ground be denied.
4. Failure to Testify Before the Grand Jury
McMoore states that his:
Constitutional rights under the Fifth, Sixth, and Fourteenth Amendments were violated when the New York Courts (Appellate Division and Ulster County Court) ruled, without conclusive support of any record that petitioner acquiesced on his attorney's advice not to appear and testify before the grand jury that indicted him.
Supporting Mem. at P. 15.
After hearing testimony on this issue at the reconstruction hearing, Judge Lamont found that Carnright met with the defendant before the District Attorney presented his case to the grand jury, and that McMoore "reluctantly acquiesced and decided that he would not testify" before it (January 1995 Report at P. 5). This finding was adopted by the Appellate Division. McMoore, 214 A.D.2d at 893. No clear and convincing evidence has been presented that indicates that this finding was erroneous and therefore, this court adopts it.
At his arraignment On September 21, 1990, McMoore did not comment on his failure to testify before the grand jury. Additionally, no motion to dismiss the indictment on that ground was ever filed pursuant to CPL § 190.50(5)(a), and a defendant waives the ability to raise his failure to testify before a grand jury as a defense unless a motion to dismiss the indictment on that ground is made no later than five days after arraignment on the indictment. See CPL § 190.50(5)(c); People v. Reddy, 108 A.D.2d 945, 946 (3rd Dep't 1985) (citations omitted).
Furthermore, because McMoore's right to testify before a grand jury is based solely on state law, the wrongful denial of that right does not entitle him to a federal writ of habeas corpus. As then-District Judge Pooler noted:
In Velez [v. People of the State of New York, 941 F. Supp.
300 (E.D.N.Y. 1996)], the court held that any alleged deficiency in the grand jury proceeding caused by the failure to afford the petitioner an opportunity to testify, whether due to his attorney's error or otherwise did not amount to a constitutional violation. Id. at 316. Any error was cured by the petitioner's conviction by the petit jury. The Second Circuit has also held that challenges to grand jury proceedings are not cognizable in federal habeas applications. Lopez v. Riley, 865 F.2d 30, 32 (2d Cir. 1989).
Paris, 1998 WL 160829, at *5. For these reasons, the Court recommends that the Fourth Ground be denied.
5. Jury Charge Concerning Justification
McMoore argues that Judge Vogt wrongfully instructed the jury that he had a "duty to retreat" prior to using deadly force on Rennie because "at no time during the altercation, according to trial testimony, could McMoore have retreated, without that is, exposing himself to physical deadly harm" (Supporting Mem at P. 19). Since "retreat was impossible for petitioner to effectuate," McMoore claims that the charge constituted error and requires reversal of his conviction. Id. at P. 20.
Under New York law, the defense of justification requires that the defendant: (a) reasonably believed the complainant was about to use deadly physical force; and, (b) satisfied his duty to retreat or was under no such duty. See People v. Watts, 57 N.Y.2d 299 (1982); see also, Brown v. Artuz, 124 F.3d 73, 81 (2d Cir. 1997) (discussing New York standard for use of deadly force in self-defense); N.Y. Penal Law § 35.15.
A defendant has no duty to retreat when he is in his own home and was not the original aggressor. Watts, 57 N.Y.2d at 301.
In considering this aspect of McMoore's appeal, the Appellate Division found "the undisputed evidence established that the shooting took place in a common hallway of an apartment complex [and] that County Court's charge was a correct statement of the law." McMoore, 214 A.D.2d at 894-95. McMoore has not established by clear and convincing evidence that this finding of the Appellate Division was erroneous. To the contrary, the evidence demonstrated that McMoore was the initial aggressor, and that Rennie had clothes in his hand and had not made any sudden movement at the time McMoore shot him (Tr. at PP. 304, 430-31). Thus, the trial court properly instructed the jury to consider whether McMoore could have retreated rather than use deadly force. Tr. at PP. 809-12; see Thomas v. Brunelle, 1997 WL 1068684, at *3 (E.D.N.Y. Mar. 11, 1997) (instruction concerning defendant's ability to retreat supported by the evidence); Godfrey v. Irvin, 871 F. Supp. 577, 583 (W.D.N.Y. 1994).
Moreover, "habeas corpus relief may only be granted based on instructions given to the jury, if it is 'established not merely that the instruction is undesirable, erroneous, or even universally condemned, but that it violated some right which was guaranteed by the Fourteenth Amendment.'" Clark v. Irvin, 844 F. Supp. 899, 906 (N.D.N.Y. 1994) (Hurd, M.J.) (quoting Cupp v. Naughten, 414 U.S. 141 (1973)); Smalls v. Batista, 6 F. Supp.2d 211, 219-20 (S.D.N.Y. 1998). McMoore has not established that Judge Vogt's charge on justification violated his constitutional rights.
In light of the foregoing, the Court recommends that this Ground be denied.
6. Ineffective Assistance of Appellate Counsel
McMoore argues he received ineffective assistance of appellate counsel because his attorney "overlooked an issue that arguably would have secured petitioner's release had it been incorporated within his plenary appeal below" (Supporting Mem. at P. 21). Although not clear from his submissions, it appears McMoore claims that the indictment was defective because it failed to state the manner in which he caused the death of Rennie (Supporting Mem. at PP 21-23; Traverse at P. 8).
In the context of a claim alleging ineffective assistance of appellate counsel, "'it is not sufficient for the habeas petitioner to show merely that counsel omitted a nonfrivolous argument, for counsel does not have a duty to advance every nonfrivolous argument that could be made.'" Atkins v. Miller, 18 F. Supp.2d 314, 320 (S.D.N.Y. 1998) (quoting Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994)). Rather, to prevail upon this claim, McMoore must demonstrate that his appellate counsel "omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker." Clark, 214 F.3d at 322.
To comport with the Sixth Amendment's requirement that defendants be given "fair notice" of the nature and cause of the accusation against him, a criminal indictment must: (a) contain all of the elements of the offense so as to fairly inform the defendant of the charges against him; and, (b) enable the defendant to plead double jeopardy in defense of future prosecutions for the same offense. United States v. Santeramo, 45 F.3d 622, 624 (2d Cir. 1995) (citing Hamling v. United States, 418 U.S. 87, 117 (1974)); Dawson v. Donnelly, 111 F. Supp.2d 239, 251-52 (W.D.N.Y. 2000). An indictment "which tracks the applicable state statute affords defendant fair notice of the crime with which he is charged." Best v. Kelly, 1988 WL 76621, at *1 (E.D.N.Y. July 7, 1988) (citation omitted), aff'd, 876 F.2d 890 (2d Cir. 1989).
The indictment charged McMoore with intending to cause the death of Rennie and causing his death (see Indictment No. 159-90). It also specifically referenced Penal Law § 125.25 which discusses the elements of the crime of second degree murder. "The incorporation by specific reference to the statute operates without more to constitute allegations of all the elements of the crime required by explicit provision of the statute itself or by judicial gloss overlaid thereon, if any, for conviction under that statute." People v. Cohen, 52 N.Y.2d 584, 586 (1981).
McMoore has not cited, and this court has not found, any authority that stands for the proposition that an indictment charging second degree murder is fatally defective unless it states the precise manner in which the defendant is alleged to have caused the death of the victim.
The manner of death is not an element of the crime of second degree murder. See N.Y. Penal Law § 125.25.
Since the indictment gave McMoore fair notice of the charges against him, he could not have been prejudiced by appellate counsel's failure to make an unsuccessful argument concerning the alleged defect in the indictment. Ehinger v. Miller, 942 F. Supp. 925, 928 (S.D.N.Y. 1996) (failure of counsel to make "losing argument" cannot be found to be ineffective assistance). Therefore, this Ground in the petition should be denied.
Moreover, a defect in a state indictment can only form the basis for federal habeas relief if it falls below basic constitutional standards. See Carroll v. Hoke, 695 F. Supp. 1435, 1438 (E.D.N.Y. 1988), aff'd, 880 F.2d 1318 (2d Cir. 1989). An indictment is constitutionally sufficient if it informs "the accused, in general terms, of the time, place and essential elements of the alleged crime." Carroll, 695 F. Supp. at 1438. McMoore's indictment satisfied this requirement.
WHEREFORE, based upon the above, it is hereby
RECOMMENDED, that McMoore's habeas petition be DENIED and DISMISSED; and it is further
ORDERED, that the Clerk serve a copy of this Order upon the parties by regular mail; and it is further
ORDERED, that the state court records be returned directly to the Attorney General at the conclusion of these proceedings, who has agreed to make them available for any appellate review.
NOTICE: pursuant to 28 U.S.C. § 636(b)(1), the parties have TEN (10) DAYS within which to file written objections to the foregoing report-recommendation. Objections shall be filed with the clerk of the court. FAILURE TO OBJECT TO THIS REPORT WITHIN TEN DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e) and 72.