Opinion
98-CV-6286 (CJS)
November 5, 2001
DECISION AND ORDER
Petitioner Tyrone Powell, proceeding pro se, seeks a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, vacating his state court conviction, alleging that: 1) his constitutional rights were abridged by virtue of Rosario and Brady violations during the trial; and 2) he was denied effective assistance of counsel, when his lawyer failed to object to the aforementioned Rosario/Brady violation. For the reasons that follow, petitioner's application for a writ of habeas corpus is denied, and the petition is dismissed.
People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert denied, 368 U.S. 866 (1961), codified in New York Criminal Procedure Law § 240.45(1)(a) and (2)(a).
Brady v. Maryland, 373 U.S. 83 (1963).
BACKGROUND
On the evening of December 23, 1993, the petitioner, Tyrone Powell, who is approximately six feet, six inches tall, and weighed approximately two hundred eighty pounds, went to the home of his aunt, Evelyn Young, at 280 Riley Street, in the City of Buffalo, New York. A violent struggle ensued, during which petitioner stabbed Evelyn Young several times in the face and in the chest with a kitchen knife, until the knife blade broke off the handle. Petitioner then forced a battery-operated Christmas candle into Evelyn Young's mouth. The Medical Examiner subsequently found broken glass and a size double A battery from the broken candle in Evelyn Young's throat. The Medical Examiner determined, based upon Evelyn Young's injuries, including a fractured thyroid cartilage and wounds to the neck, that she died as a result of asphyxia, caused by manual strangulation. (Id., pp. 418, 426).
After strangling Evelyn Young, petitioner took a meat cleaver from the kitchen and went upstairs to a bedroom where Evelyn Young's nephew, Albert Young, was sleeping. At some point during a confrontation in the bedroom, petitioner struck Albert in the face with the meat cleaver, severely lacerating Albert's face and causing the contents of his left eye to protrude. (Trial Transcript, pp. 453-54). Petitioner told Albert that he needed help, and there was some discussion of money which Albert had in his wallet, but petitioner did not take Albert's money at that time. (Id., p. 473). Instead, petitioner then asked Albert if anyone else was in the house, and Albert told him that Evelyn Young's godson, John Fitzgerald was sleeping in a nearby room. As petitioner led Albert down the hallway, however, Albert managed to wrestle free by throwing himself over the railing and down the stairs. Petitioner, who still had the meat cleaver, chased Albert and caught him as he was running out of the house. The two men then struggled fiercely for several minutes, as evidenced by pools of blood on the driveway and blood smeared on Evelyn Young's house and car. The two men's loud struggle caught the attention of a neighbor, who called the police. Albert then somehow managed to escape and run up the street, with petitioner following him.
While petitioner and Albert were fighting, thirteen-year-old John Fitzgerald, who had been asleep upstairs in the house, was awakened by Albert's cries for help. Fitzgerald came downstairs, by which time petitioner and Albert were outside. Fitzgerald saw Evelyn Young's body, then he grabbed a metal pipe for a weapon and ran outside.
Petitioner was pursuing Albert Young up Riley Street, when police officers arrived, and, observing blood on his clothing, asked him what had happened. Petitioner told the police officers that someone had burglarized his house at 280 Riley Street, and that the burglar was at the corner of Riley and Jefferson Streets. The police officers then drove away, and petitioner returned to 280 Riley Street, where he found John Fitzgerald standing outside the apartment, holding a pipe. Petitioner attempted to coax Fitzgerald back inside the house, but Fitzgerald refused. At some point, petitioner dropped the meat cleaver on the driveway beside the house. Petitioner then went back into the apartment and locked the door. At some point, either before or after fighting with Albert Young, petitioner went to the kitchen and hid a blood-stained sofa pillow under a freezer, and hid the broken, battery-operated candle, behind a refrigerator. He also secreted the broken knife blade inside the couch. Petitioner then laid on the floor beside the body of Evelyn Young. The police officers, who by that time had located Albert Young and had placed him in an ambulance, went back to 280 Riley Street, but could not enter the home because the doors were locked. Police and firefighters eventually entered the apartment by breaking down the door.
At trial, Annette Choates, the neighbor who witnessed the events from across the street, testified that petitioner did not drop the meat cleaver until just before he went back inside the house. (Trial Transcript, p. 344)
Police Officer Mark Maraschiello testified that Albert "was severely beaten. I could barely understand [him] because his lip was split. He was beaten as badly as anyone I've ever seen . . . ." (Trial Transcript, p. 187).
Petitioner subsequently gave several conflicting stories to the police. While still at the apartment, petitioner told police officers that someone named "CC" or "Carlos Carl," who had been upstairs in the house, had come downstairs with a knife, and had been "acting crazy." Police subsequently took petitioner to a hospital emergency room, at which time petitioner told police that he had been at Evelyn Young's house, and had gone to the kitchen to get a drink, and had returned to find someone named Casper, which was Albert Young's nickname, fighting with Evelyn Young. Petitioner stated that he had then fought with Casper, both upstairs and downstairs in the home, and had then chased Casper into the street. Petitioner stated that he then returned to the apartment to check on Ms. Young, and that upon finding her unresponsive, he passed out on the living room floor. The police subsequently took petitioner to the police station, where he again essentially gave the same version of events that he had given at the hospital.
Although petitioner claims that he "passed out" beside the body of Evelyn Young, neighbors observed petitioner looking out one of the windows shortly before the police entered the house. (Trial Transcript, p. 375).
However, when police questioned the veracity of petitioner's stories, he told them that he wanted to make a full confession. Petitioner stated that he and his aunt, Evelyn Young, had been discussing the death of petitioner's infant son, which had occurred several months earlier, when, for no apparent reason, Young suddenly grabbed his face and warned him that she would kill him if he ever stole from her. Petitioner stated that, when he pushed Young's hand away, she grabbed a kitchen knife from beside the couch, and threatened to stab him. Petitioner stated that he wrestled the knife away from Young, but that during the struggle, he accidentally stabbed her in the face and shoulder, breaking the knife blade. Petitioner alleged that Young then reached for a battery-operated candle on a nearby table, but that he grabbed it first, and accidentally shoved it into her mouth. (Trial Transcript, p. 612). Petitioner testified that he did not call 911 or otherwise seek medical attention for Evelyn Young because he "was freaked." (Id., p. 617).
Instead, petitioner grabbed a meat cleaver and went upstairs. Petitioner admits that he was aware that Albert Young was sleeping upstairs in the house. However, he contends that, during his struggle with Evelyn Young, she had told him that "it was a set up," and that, "a white man was watching," and that because he feared someone else might be in the house, he got the meat cleaver from the kitchen and went upstairs.
Petitioner maintains that he went into Albert Young's room only to ask him for help, and that he did not intentionally strike Albert with the meat cleaver, but did so reflexively when Albert lunged at him. Petitioner testified that he continued to pursue Albert with the meat cleaver, despite Albert's attempts to escape, because he was "trying to explain to him what was going on," but that Albert kept "acting crazy, trying to get away." (Id., pp. 634, 639).
On December 24, 1993, John Fitzgerald also gave a written statement to police, which stated, in relevant part: "I ran downstairs, and I looked in the livingroom and I saw [Evelyn Young] laying half on the couch and half off, she was face up. I didn't go near her, I ran outside and picked up a pipe." (Petitioner's Notice of Motion to Vacate Judgement Under CPLR [sic] 440.10, dated May 17, 1996, p. 50). As will be seen below, this written statement is the basis of the instant habeas petition.
Petitioner was subsequently charged, in a nine-count indictment, with the following crimes: 1) Murder in the Second Degree, for causing the death of Evelyn Young by strangling her; 2) Criminal Possession of a Weapon Fourth Degree, for possessing a dangerous instrument, a knife, with the intent to use it against Evelyn Young; 3) Criminal Possession of a Weapon in the Fourth Degree, for possessing a dangerous instrument, a battery-operated candle, with the intent to use it against Evelyn Young; 4) Assault in the Second Degree, for causing physical injury to Evelyn Young with a knife; 5) Assault in the Second Degree, for causing physical injury to Evelyn Young with a battery-operated candle; 6) Attempted Murder in the Second Degree, for attempting to cause the death of Albert Young, with a meat cleaver; 7) Criminal Possession of a Weapon in the Fourth Degree, for possessing a dangerous instrument, a meat cleaver, with the intent to use it against Albert Young; 8) Attempted Robbery in the First Degree, for attempting to forcibly steal property from Albert Young, and for causing serious physical injury to Albert Young during the commission of the crime; and 9) Attempted Robbery in the First Degree, for attempting to forcibly steal property from Albert Young, and for using a dangerous instrument, a meat cleaver, during the commission of the crime.
The matter was tried before a jury in New York State Supreme Court, Erie County, the Honorable Penny M. Wolfgang presiding. The second witness to testify at the trial was Police Officer Edwin Torres, who testified, without objection, regarding a statement which John Fitzgerald had made to him when Torres arrived at 280 Riley Street. Specifically, Torres testified: "[T]his young boy was on the porch, and he was crying. He said that — he called her his godmother — was on the floor in the living room with a cup in her mouth. That's how he described it." (Trial Transcript, p. 137) (emphasis added). Later in the trial, John Fitzgerald testified on direct examination, in relevant part, as follows:
Q. What did you find when you got downstairs there?
A. I saw [Evelyn Young] laying halfway on the couch and halfway on the floor.
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Q. What did you notice about her when you saw her?
A. I saw, I saw something in her mouth that was round and gold.
Q. You saw something in her mouth that was round and gold? Johnnie, I'm going to show you what has been marked Exhibit 9 for identification and ask you if this item looks familiar to you?
A. I don't remember.
Q. You don't remember? Was it round like the end of this item?
A. Yes.
Q. Was it this size?
A. I can't remember.
Q. Was it around this size?
A. It was round.
Q. Okay, it was round and gold. And where was this round gold thing that you saw in her mouth?
A. How was it in her mouth? It was pointing out.
(Trial Transcript, pp. 370-71). Fitzgerald was not able to identify the petitioner as the man he had seen at Evelyn Young's house on the night of the homicide. (Id., pp. 375-76).
On cross-examination, petitioner's counsel elicited the following testimony from Fitzgerald, in relevant part:
Q. And you were only in the living room for a couple of seconds, weren't you, Johnnie?
A. Yes.
Q. And did you see glass in [Evelyn Young's] mouth?
A. I can't remember.
Q. Do you remember ever telling the police that you saw glass in her mouth?
A. Yeah.
Q. Is that what you told them you saw, glass in her mouth, Johnnie?
A. I said that I saw a — it looked like it was a cup inside of her mouth.
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Q. Now, the thing that was in [Evelyn Young's] mouth, Johnnie, that was round and gold, was it small, round?
A. I can't remember.
Q. Okay. Johnnie, could it have been a small circular piece of gold that was in her mouth, about half an inch apart, wide?
A. I can't remember.
(Id., pp. 381, 383). On redirect examination, Fitzgerald testified that the object in Evelyn Young's mouth was round, "with a long piece coming out of the round end." (Id., p. 386). On re-cross examination, Fitzgerald testified that he had not seen any "piece coming out of the cup" in Evelyn Young's mouth. (Id.). On further re-direct examination, Fitzgerald testified that he saw only a round object in Evelyn Young's mouth, however, defense counsel then concluded the examination of Fitzgerald as follows:
Q. Just one more, Johnnie, one more: You don't remember what you saw in [Evelyn Young's] mouth, do you?
A. No.
(Id., pp. 387-88) (emphasis added).
Immediately following John Fitzgerald's testimony, the prosecution called to testify Police Officer Roger Masters, who, in his testimony, noted that, on December 24, 1993, the morning following the homicide, he had interviewed Fitzgerald and had taken a written statement from him. (Id., p. 391). However, Officer Masters did not testify as to anything that Fitzgerald had said or written during the interview. Petitioner's counsel did not object or make any application to the Court regarding Fitzgerald's written statement.
During the trial, petitioner's counsel presented to the jury a theory of the case wherein he argued that Evelyn Young had not died as a result of manual strangulation, but instead, had died of intrinsic asphyxia, a result of the candle battery blocking her airway. (See, pp. 429-30). Defense counsel also argued that both Evelyn Young's death and Albert Young's injuries had been accidental. During his closing argument, petitioner's counsel said, in relevant part:
Now, young John Fitzgerald, you have nothing but sympathy for this boy. . . . He went downstairs, saw his aunt [sic] for a few seconds, put the phone on the hook, went to the side door, got the stick, went outside and saw nothing. . . . Now, what a traumatic experience for young John Fitzgerald. He came downstairs and saw [Evelyn Young] and he looked for a few seconds. Now, what did he see in those few seconds? Well, part of her nightgown was torn and she was half on and half off the couch. What do you think he really saw? Now, we asked him about what he saw in the mouth on cross-examination. . . . And he said, I don't remember. And at one point he described a cup. And I suggest that in the couple of seconds that he looked he really didn't see anything in detail. And I strongly suggest that he certainly didn't see anything that was a candle coming out of the mouth of Evelyn Young. He didn't — his observation powers weren't that good. And he had the opportunity to see and speak to [petitioner] on the street which ostensibly is well lit from that streetlight that's there, and [petitioner] asked him to come in the house. Yet he can't identify in court [the petitioner]. Face to face. Close up. His observations weren't that good. And that's borne out, because you can have his testimony read back to you . . . [here petitioner's counsel paraphrases Fitzgerald's testimony] Later on — and did you see glass in [Evelyn Young's] mouth? Answer: I can't remember. Question: Do you remember ever telling the police you saw glass in your [sic] mouth? Answer: Yes. And you were in that room for only a couple of seconds? You answer, yes. Question: Now, the thing, this was in [Evelyn Young's] mouth, Johnnie, that was round and gold, was it small, round — Answer: I can't remember. Okay, John. Could it have been a small circular piece of gold that was in her mouth about a half an inch wide? Answer: I can't remember. Question: Did the person have anything in either hand? Answer: I can't remember. Question: I want to ask him again, the piece coming out of the cup, Johnnie, could you see that object? Answer: What was in [Evelyn Young's] mouth? Question: Yes. Answer: No. Question: So you didn't see that, did you? Answer: No. That's what he saw.
(Trial Transcript, pp. 784-788).
The Court then charged the jury as to the elements of the nine crimes charged in the indictment. In addition, at defense counsel's request, the Court charged the jury, inter alia, with respect to the first count of the indictment, as to the lesser included offenses of Manslaughter in the First Degree, Manslaughter in the Second Degree, and Criminally Negligent Homicide. While the jury was deliberating, they requested certain evidence, including the entire testimony of John Fitzgerald. (Trial Transcript, p. 968).
After deliberating for several more hours, and requesting other evidence and additional instructions, the jury reached a verdict as to the first, second, fourth, sixth, seventh, and eighth counts of the indictment, but were deadlocked as to the third and fifth counts, whereupon the prosecution moved to dismiss the third and fifth counts of the indictment, which motion was granted. (Id., pp. 992-93). As to the first count of the indictment, the jury found petitioner not guilty of Murder in the Second Degree, but guilty of Manslaughter in the First Degree. (Id., p. 994). The jury also found petitioner guilty as to the sixth and seventh counts, Attempted Murder in the Second Degree and Criminal Possession of a Weapon, respectively, but not guilty as to the remaining counts. (Id., pp. 994-95).
On November 15, 1994, Judge Wolfgang sentenced petitioner, as follows: for the crime of Manslaughter in the First Degree, to an indeterminate sentence of 8 and one-third to twenty five years; for the crime of Attempted Murder in the Second Degree, to an indeterminate term of seven to twenty-one years; and for the crime of Criminal Possession of a Weapon in the Fourth Degree, a definite sentence of imprisonment for a period of one year. (Id., pp. 20-21). The sentences for these latter two crimes were to be served concurrently, but consecutive to the sentence for the Manslaughter conviction. (Id.).
Petitioner filed a Notice of Appeal from these convictions on November 15, 1994. On direct appeal, petitioner initially challenged his conviction on three grounds: 1) that there was insufficient evidence of intent to sustain a conviction for manslaughter in the first degree, and that the verdict was against the weight of the evidence; 2) that there was insufficient evidence to sustain a conviction for attempted murder in the second degree, and that the verdict was against the weight of the evidence; and 3) that his sentences were unduly harsh and excessive. Petitioner filed his brief before the Supreme Court, Appellate Division, Fourth Department, on December 7, 1995.
On May 31, 1996, prior to any decision on his direct appeal, petitioner also filed a motion to vacate his conviction pursuant to CPL 440.10, before Judge Wolfgang, based upon matters which were allegedly outside the trial record, and thus, were not subject to review on direct appeal. Specifically, petitioner alleged: 1) that the prosecutor had refused to provide him with Evelyn Young's psychiatric records; 2) that the prosecutor had failed to provide the defense with John Fitzgerald's prior written statement, thereby violating petitioner's "state and federal statutory and constitutional rights to present a defense, to confront and cross-examine his accusers, to due process of law, and to a fair trial"; 3) that the prosecutor had failed to turn statements by Annette Choates, as well as her criminal record; 4) that the prosecutor failed to turn over a statement by John Fitzgerald, in which he stated that he had never seen Evelyn Young's body; 5) that the prosecutor deprived petitioner of a fair trial by not having them testify at a Wade/Huntley hearing; 6) that petitioner was prevented from having certain witnesses testify at trial; and 7) that petitioner's trial counsel was ineffective.
Of the foregoing grounds, however, the most important, in terms of the instant habeas petition, is petitioner's claim regarding statements made by John Fitzgerald. As to that, in his motion pursuant to CPL § 440.10, petitioner alleged that he had requested all of Fitzgerald's statements, but that he had not been provided the written statement which Fitzgerald gave on December 24, 1993. In that regard, petitioner alleged that "the jury did not know the truth that Johnny Fitzgerald did not see Evelyn Young during the date of the crime, but Johnny Fitzgerald committed perjury during the trial by lying on the witness stand to the jury by saying that he did see Evelyn Young laying on the couch with something in her mouth. . . ." (Petitioner's CPL § 440.10 Motion, p. 25) (emphasis added). The Court pauses here to note, however, that petitioner was misstating Fitzgerald's written statement, since Fitzgerald did not state that he had not seen Evelyn Young's body. Rather, Fitzgerald stated that he had seen Evelyn Young's body, but had not gone near it. (See, Id., p. 50: "I ran downstairs, and I looked in the livingroom and I saw [Evelyn Young] laying half on the couch and half off, she was face up. I didn't go near her, I ran outside and picked up a pipe."). Petitioner maintained that this alleged failure to turn over Fitzgerald's written statement was a violation of his "Rosario and Brady rights, and all other State and Constitutional rights." (Id., p. 31). As proof that the prosecution had failed to turn over Fitzgerald's statement, petitioner submitted two unsworn letters, from his trial counsel to himself, which stated: "Be advised that my file does not contain a statement made by Johnny to the police on either December 24, 1994 [sic]" (Id., p. 43), and "I don't have any statements that Johnny made to police in my file and further, I don't believe [Fitzgerald] made any statements prior to his Grand Jury testimony." (Id., p. 44). As to his claim of ineffective assistance of counsel, petitioner alleged that his trial counsel: 1) failed to make motions to obtain Evelyn Young's psychiatric records; 2) failed to make motions to obtain Albert Young's criminal record, as well as all statements made by Albert Young and Annette Choates; 3) failed to obtain the prior written statement of John Fitzgerald, which allegedly stated that "Johnny Fitzgerald did not see Evelyn Young during the crime"; 4) "refused to do anything" when the prosecution "illegally" had Fitzgerald and Choates testify during the trial, but did not have them testify during the Wade/Huntley hearing. (Id., pp. 62-63).
This latter statement is contrary to the record, since, as noted above, Officer Masters testified at the trial that Fitzgerald had given a written statement on December 24, 1994. (Trial Transcript, p. 391).
In response to petitioner's motion, the prosecution stated, inter alia, that: 1) several of the issues raised by petitioner were not preserved for review; and 2) "the statement of John Fitzgerald was in fact turned over to the defendant by the prosecution." (Opposing Affidavit, pp. 4, 6). On September 30, 1996, Judge Wolfgang issued a Memorandum and Order, denying petitioner's motion. In that Memorandum and Order, Judge Wolfgang wrote:
Most troubling is the contention that Fitzgerald's written statement given to the Buffalo Police on December 24, 1993 was not disclosed. The defendant attaches correspondence from trial counsel . . . confirming that the document is not in the attorney's file. [Counsel] further stated, "I don't believe he [Fitzgerald] made any statements prior to his Grand Jury testimony". The People unequivocally deny the defendant's allegation.
At the defendant's trial, Fitzgerald was questioned extensively, but without reference to the police statement, relative to his observation of the deceased shortly after the homicide. However, Detective Masters, who testified subsequently, confirmed that Fitzgerald did give the statement in question. Therefore, although the Fitzgerald statement was not among the trial exhibits, the court finds that sufficient evidence of its existence appears on the record to permit review of the Rosario claim on direct appeal, and this requires a denial of this claim. (CPL 440.10, subd. 2[b]).
CPL § 440.10(2)(b) states, in relevant part, that "the court must deny a motion to vacate a judgment when: . . . The Judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such an appeal."
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Lastly, the court finds the purported failure of counsel to engage in appropriate discovery to be insufficiently substantiated or otherwise reviewable on direct appeal.
(Memorandum and Order dated September 26, 1996).
Petitioner sought leave to appeal Judge Wolfgang's ruling to the Appellate Division, Fourth Department, pursuant to CPL § 450.15, however, the Appellate Division, Fourth Department denied that application on December 30, 1996.
Petitioner subsequently sought, and was granted, permission by the Supreme Court, Appellate Division Fourth Department, to supplement his direct appeal. Petitioner's supplemental brief stated, in relevant part:
On September 26, 1996, the Hon. Penny M. Wolfgang, J.S.C., denied appellant's CPL 440.10 motion with respect to a Rosario issue and other issues on the ground that they appeared sufficiently on the record to permit review on direct appeal. On October 30, 1990 [sic], this Court granted appellant permission to file a supplemental brief with respect to these issues so that they cold be considered as part of appellant's direct appeal.
(Petitioner's Supplemental Brief to the Appellate Division, 4th Department, p. 3). However, the only issue which petitioner raised in the supplemental brief was whether or not the prosecution had, by allegedly failing to turn over John Fitzgerald's written statement, committed a Rosario violation which required reversal of the conviction.(Id., pp. 4-7). It appears that petitioner purposefully did not claim ineffective assistance of counsel, but instead, argued that "Detective Masters' . . . passing reference to his interview with Fitzgerald was insufficient to alert the defense to the existence of the Fitzgerald statement and, hence, the Rosario violation. (Id., p. 6) (emphasis added). On December 30, 1996, the Supreme Court, Appellate Division, Fourth Department, unanimously affirmed petitioner's conviction, and noted, in a memorandum decision:
When the existence of a written statement of a prosecution witness came to light at trial, defendant failed to object, to seek the statement or to move for sanctions. Defendant's argument that the prosecutor failed to comply with his Rosario obligation is, therefore, not preserved for our review, and we decline to exercise our power to reach the issue as a matter of discretion or in the interest of justice.
People v. Powell, 651 N.Y.S.2d 788, 788-89 (4th Dept. 1996) (citations omitted).
On January 24, 1997, petitioner sought leave to appeal to the New York Court of Appeals. Despite not having briefed the issue before the Appellate Division, Fourth Department, petitioner stated, in his application to the Court of Appeals:
Appellant further wishes to raise the following issues he raised in his pro se CPL 440 motion, which were presented to the Appellate Division for its review to the extent that the issues were reviewable on direct appeal:
Again, despite counsel's representations to the contrary, the record is clear that petitioner did not raise the issue of ineffective assistance of counsel before the Appellate Division, Fourth Department, in his direct appeal. In that regard, the Court notes that, after Judge Wolfgang denied petitioner's CPL 440 motion on September 26, 1996, petitioner did two things: 1) he sought leave to appeal Judge Wolfgang's ruling to the Appellate Division, Fourth Department, pursuant to CPL § 460.15; and 2) he applied to the Appellate Division, Fourth Department, for permission to file a supplemental brief. The latter application was granted on October 30, 1996, and the former application was denied on December 30, 1996. Petitioner did not raise the issue of ineffective assistance of counsel in his supplemental brief, but, as noted, argued instead that the reference at trial to Fitzgerald's written statement was too fleeting to have alerted defense counsel to the potential Rosario violation.
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6. Whether appellant had ineffective assistance of counsel as guaranteed by the Sixth Amendment to the US Constitution and Article I, Section 6 of the New York Constitution, in the trial court by his failure to make appropriate motions, failure to exercise diligence, skill, and/or reasonable actions in his obligation to serve appellant, and denied appellant his constitutional rights to have his witnesses testify in his behalf?
(Application for Certificate Granting Leave to Appeal to the Court of Appeals, p. 2). On May 12, 1997, the New York Court of Appeals denied petitioner's application for leave to appeal.
On may 19, 1997, petitioner filed a second motion pursuant to CPL § 440, before Judge Wolfgang, alleging ineffective assistance of counsel, on the grounds that his trial counsel failed "to object or otherwise protest the prosecutions's alleged failure to turn over Rosario material." (Affidavit in Support of Petitioner's Second CPL § 440 motion, p. 1). By a Memorandum and Order dated January 6, 1998, Judge Wolfgang denied the application, noting:
Taking into account the otherwise effective cross-examination of Fitzgerald, and the fact that the [written statement which Fitzgerald gave to the police] did not expressly contradict his trial testimony, the court finds that counsel's failure to specifically impeach Fitzgerald with the statement does not constitute a deficiency in representation. It is also noteworthy that counsel actually utilized Fitzgerald's observation of the object [in Evelyn Young's mouth] in conjunction with defendant's testimony to contend that the candle came apart after accidental insertion into the victim's mouth. In any event, since the round, gold object was neither produced at the trial nor described with sufficient particularity, its presence, even if established, was only remotely connected with the issue of intent, and irrelevant to the possibility that the victim was asphyxiated by strangulation.
(Memorandum and Order dated January 6, 1998, pp. 4-5). In evaluating petitioner's claim, Judge Wolfgang expressly relied on the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). (Id., p. 3). On April 21, 1998, the Supreme Court, Appellate Division, Fourth Department, denied petitioner's application, pursuant to CPL § 460.15, for leave to appeal Judge Wolfgang's decision.
It is unclear why Judge Wolfgang addressed the merits of petitioner's ineffective assistance of counsel claim on this second CPL § 440 motion, since it would appear to have been procedurally barred pursuant to CPL § 440.10(2)(c), which provides that, "the court must deny a motion a motion to vacate a judgment when . . . [a]lthough sufficient facts appear on the record . . . to have permitted, upon appeal from the judgment, adequate review . . . no such appellate review occurred . . . owing to the defendant's unjustifiable failure to take or perfect an appeal." More specifically, petitioner did not raise the ineffective assistance of counsel claim before the Appellate Division, Fourth Department, even though Judge Wolfgang had already denied that claim in petitioner's first CPL § 440.10 motion, pursuant to CPL § 440.10(2)(b), noting that the ineffective assistance claim was "reviewable on direct appeal." (Memorandum and Decision dated September 26, 1996, p. 5; Petitioner's first CPL § 440.10 motion, p. 63). Nor was petitioner's failure to raise that claim on his direct appeal an accident, since he specifically argued that his counsel had justifiably failed to notice the alleged Rosario/Brady violation, owing to the fact that the testimony regarding Fitzgerald's statement to police was very brief.
Petitioner subsequently filed the subject petition for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254, alleging that: 1) his constitutional rights were abridged by virtue of Rosario and Brady violations at the trial; and 2) he was denied effective assistance of counsel, when his counsel failed to object to the aforementioned Rosario/Brady violation. Respondent filed an Answer and an accompanying Memorandum of Law, in which he asserts, first, that the petitioner is barred from pursuing the alleged Rosario/Brady violation, pursuant to Harris v. Reed, 489 U.S. 255 (1989), since Judge Wolfgang and the Appellate Division, Fourth Department, denied those claims on state procedural grounds, and second, that petitioner failed to demonstrate ineffective assistance of counsel. Petitioner subsequently filed a traverse, as well as a proposed amended pleading, in which he asserts that his Brady violation was exhausted.
The Court has thoroughly considered the parties' submissions and the entire record.
ANALYSIS Brady Claim
The Court finds, first, that petitioner did not exhaust his Brady claim. The habeas statute provides that "[a]n application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the state." 28 U.S.C. § 2254(b)(1)(A). A habeas petitioner ?must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established review process." O'Sullivan v. Boerckel, 526 U.S. 838, 845, 119 S.Ct. 1728, 1732, 144 L.Ed.2d 1 (1999). Typically, this means that federal habeas claims must have been included in both the petitioner's appeal to the state's intermediate appellate court and in an application for permission to appeal to the state's highest court. See, O'Sullivan, 526 U.S. at 848, 119 S.Ct. at 1734. Failure to exhaust may be excused, however, if the petitioner shows cause and prejudice. Wainright v. Sykes, 433 U.S. 72, 87-88, 97 S.Ct. 2497, 2506-07, 53 L.Ed.2d 594 (1977).
The Court is aware that respondent, in his Answer, expressed the belief that all of the grounds raised in the petition had been exhausted.
Applying the foregoing principles to the facts of this case, the Court finds that petitioner did not exhaust his Brady claim. In ruling upon petitioner's first CPL § 440 motion, in which he asserted a Brady claim, Judge Wolfgang did not rule on the merits, but found that there was sufficient evidence in the record of the alleged Brady/Rosario violations to permit adequate review of those claims on direct appeal, and accordingly, she denied those claims on procedural grounds, pursuant to CPL § 440.10(2)(b). However, petitioner, who was at the time represented by new appellate counsel, did not subsequently allege a Brady claim before the Appellate Division, Fourth Department, but instead, raised only a Rosario claim based solely on New York State law. Nor did petitioner raise a Brady claim in his second CPL § 440 motion. Therefore, if this Court were to now consider the alleged Brady violation, it would be the first court to do so. Moreover, petitioner has offered no explanation for his failure to raise the Brady issue before the Appellate Division, Fourth Department. Accordingly, the Court finds that petitioner's Brady claim is barred by 28 U.S.C. § 2254(b)(1)(A).
Even assuming that petitioner's Brady claim had been exhausted, the Court nonetheless finds that it would be barred pursuant to Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989). In Harris, the Supreme Court held that "a procedural default does not bar consideration of a federal claim on . . . habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Harris, 489 U.S. at 263, 109 S.Ct. at 1043. In petitioner's first CPL § 440 petition, he asserted a Brady violation, however, Judge Wolfgang expressly denied that claim on state-law procedural grounds, specifically, New York Criminal Procedure Law, § 440.10(2)(b). Subsequently, petitioner raised a Rosario claim as to Fitzgerald's statement, but not a Brady claim, before the Appellate Division, Fourth Department, which found, on state procedural grounds, that the issue had not been preserved for review on appeal. See, People v. Powell, 651 N.Y.S.2d 788 (4th Dept. 1996). Petitioner did not raise a Brady claim in his second and final CPL § 440 motion. Therefore, petitioner's Brady claim clearly was denied on state procedural grounds.
Where, as here, the petitioner's claim is barred by an adequate and independent state law ground, federal review of the claim is barred unless the petitioner can demonstrate cause for the procedural default and prejudice flowing therefrom, or that "failure to consider the claim will result in a fundamental miscarriage of justice. Vargas v. Keane, 86 F.3d 1273, 1280 (2d Cir. 1996), cert. denied, 519 U.S. 895(1996) (citations and internal quotations omitted). The Court finds that petitioner has made no showing of cause or prejudice.
Ineffective Assistance of Counsel
Turning to petitioner's claim of ineffective assistance of counsel, the Court notes that this claim is based solely upon counsel's failure, at trial, to object or otherwise move for sanctions, based upon the prosecution's alleged failure to disclose the written statement of John Fitzgerald. At the outset, however, the Court notes that petitioner has already indicated that this alleged lapse by his trial counsel was reasonable, under the circumstances. More specifically, in his supplemental brief to the Appellate Division, Fourth Department, by his new appellate counsel, petitioner stated: "[T]he defense apparently was unaware throughout the prosecution of the existence of Fitzgerald's statement to the police, and appellant submits that Detective Masters's subsequent passing reference to his interview with Fitzgerald was insufficient to alert the defense to the existence of the Fitzgerald statement and, hence, the Rosario violation. (Petitioner's Supplemental Appellate Brief, p. 6) (emphasis added). In other words, petitioner has already represented to a court of law that his trial counsel's failure to object to the alleged Rosario violation was justified. Now, petitioner comes before this Court, alleging that this same lapse was of a magnitude to render counsel's representation constitutionally defective. The Court, however, disagrees.
The guarantee of counsel in criminal trials protects the fundamental right to a fair trial afforded by the Sixth Amendment. See Strickland v. Washington, 466 U.S. 668, 684-685, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A claim for ineffective assistance of counsel has two components:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
Strickland, 104 S.Ct. at 2064. In this regard, the issue is whether or not counsel provided "reasonably effective assistance," that is, "the defendant must show that counsel's representation fell below an objective standard of reasonableness."Id. The Supreme Court has held that, in evaluating the effectiveness of counsel
[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.
Id. at 2065 (citation and internal quotations omitted). Moreover, "[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment." Id. at 2066. As to that, "[c]onflict of interest claims aside, actual ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice." Id. at 2067. In this regard, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 2068. In considering the effectiveness of counsel, a court "must consider the totality of the evidence before the judge or jury." Id. at 2069. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996,("AEDPA"), a federal court can grant habeas corpus relief only if the State court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Aparicio v. Artuz, ___ F.2d ___, 2001 WL 1245289 at *8 (2d Cir. Oct. 5, 2001).
Applying these principles of law to the case at bar, the Court notes, first, that petitioner has not submitted evidentiary proof in admissible form to support his claim that the prosecution failed to turn over Fitzgerald's written statement. On the other hand, the prosecutor has submitted a sworn statement that he did disclose the statement. Clearly, this is a glaring defect in petitioner's argument, since his habeas claims are therefore based entirely on the unproven assumption that the prosecution failed to disclose Fitzgerald's statement.
However, even assuming arguendo that the prosecution did not disclose Fitzgerald's written statement, the statement clearly does not have the significance that petitioner seems to believe. Specifically, and, contrary to what petitioner has alleged at various times, the statement does not indicate that Fitzgerald did not see Evelyn Young's body. Rather, it indicates that Fitzgerald did see her body, but did not go near it. Obviously, Fitzgerald could have observed the condition of Evelyn Young's body even at a distance of several feet. More importantly, counsel's alleged failure to make a Rosario objection clearly did not prevent him from effectively discrediting Fitzgerald's trial testimony. In fact, it would be hard to imagine a more effective cross-examination, since counsel caused Fitzgerald to admit that he did not remember what he saw in Evelyn Young's mouth.
Finally, petitioner killed Evelyn Young in a brutal manner, and then proceed to savagely attack Albert Young. Further, it appears clear from the record that petitioner probably would have killed Albert as well, had Albert not, miraculously, managed to escape from the six-foot six, two hundred-eighty pound, meat cleaver wielding petitioner. Petitioner attempted to hide evidence, and lied several times to the police. Moreover, the Court believes that the version of events which petitioner finally settled upon, after having several hours to compose his story, was, at best, unbelievable.
Therefore, the Court finds that petitioner's trial counsel was exceptionally effective in obtaining an acquittal on the top count of Murder in the Second Degree. Based upon all of the foregoing, the Court finds that trial counsel clearly was not ineffective.
CONCLUSION
Petitioner's application for a writ of habeas corpus is denied, and the petition is dismissed. The Court hereby certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith and leave to appeal to the Court of Appeals as a poor person is denied. Coppedge v. United States, 369 U.S. 438 (1962). Further requests to proceed on appeal in forma pauperis should be directed on motion to the United States Court of Appeals for the Second Circuit in accordance with Rule 24 of the Federal Rules of Appellate Procedure.
So Ordered.