Opinion
01 Civ. 4546 (GBD) (JCF)
December 3, 2001
Beth J. Thomas, Esq., Assistant Attorney General, New York, New York.
REPORT AND RECOMMENDATION
TO THE HONORABLE GEORGE B. DANIELS, U.S.D.J.:
Handy Lee Rayam petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his convictions for sodomy in the first degree, burglary in the second degree, sexual abuse in the first degree, unlawful imprisonment in the second degree, criminal trespass in the second degree, and menacing in the second degree following a jury trial in New York State Supreme Court, New York County. Mr. Rayam argues that his conviction should be overturned because his attorney on appeal was ineffective. For the reasons that follow, I recommend that the petition be denied.
Background
The petitioner and Benjamin Bailey lived together as lovers for a period of five years between 1990 and 1995. During the summer of 1994, the relationship took a turn for the worse and the two began discussing a break-up. Their partnership continued to deteriorate over the next few months as Mr. Rayam developed a drinking problem, quit his job, and began spending most of his time at their apartment. (Tr. 288-90). After an altercation in January 1995 during which the petitioner punched Mr. Bailey in the head several times, Mr. Bailey broke up with Mr. Rayam. (Tr. 516, 529-532).
"Tr." refers to the trial transcript.
They agreed that Mr. Bailey would keep the apartment since he paid the rent and the lease was in his name. (Tr. 290, 399, 408). Because the petitioner was leaving to visit his family in Florida, he asked Mr. Bailey to gather boxes so he could pack upon his return. Mr. Bailey agreed and also informed the petitioner that he would be changing the door locks and so the petitioner would have to contact him at work to gain access. (Tr. 290-91). In the wake of the January beating, Mr. Bailey also set up a code with his work colleagues at the design firm where he was a partner. His co-workers were instructed that if Mr. Bailey called and informed them that the "project was not going well," that meant that he was having problems with Mr. Rayam and needed help. (Tr. 303, 402-03, 412).
On February 13, 1995, the petitioner returned to New York City and called Mr. Bailey to arrange to meet him at the apartment. (Tr. 408-09, 415). The two men had consensual sex and the petitioner stayed with Mr. Bailey for two days. On February 15, Mr. Bailey drove the petitioner to the airport; Mr. Bailey had bought a plane ticket to Atlanta for Mr. Rayam who was presumably going to move there. The two parted amicably. (Tr. 290, 409). Between February 15 and 27, the petitioner called Mr. Bailey "almost daily," initially professing his love but in later calls accusing Mr. Bailey of having ruined his life. (Tr. 410).
On February 27, 1995, Mr. Bailey stopped by his apartment to walk his dog for a few minutes before returning to work. Since he expected to be on the sidewalk directly in front of the apartment, he left his door unlocked. (Tr. 293, 419). When he walked back into his apartment, Mr. Rayam, who had been hiding behind the door, grabbed him around the throat. Forcing Mr. Bailey into the bedroom, the petitioner said, "You didn't think I would ever come back to get you. You are so naive. I could have had a gun. I could have popped you right now." (Tr. 293-94). After drinking some champagne, the petitioner ripped off Mr. Bailey's clothes and performed his first act of sodomy despite Mr. Bailey's efforts to resist. (Tr. 294-96). When the petitioner finished, he next produced a dildo and shoved it into Mr. Bailey's anus, stating, "I can stick this dildo in you, and tie you up, and leave you for the police." (Tr. 297-98). The petitioner then removed the dildo and tried inserting his entire fist into Mr. Bailey but was unsuccessful. (Tr. 301). Throughout the attack, Mr. Rayam repeated a series of threats to Mr. Bailey, reminding him of what had happened to Nicole Simpson and stating, "If I can't have you no one will." (Tr. 297).
Eventually Mr. Bailey persuaded Mr. Rayam to let him make a phone call to his place of employment, and he informed a colleague that "the project was not going well." Soon thereafter, Mr. Bailey received a phone call from a police officer, asking if he needed help. When Mr. Bailey said, "yes," the officer directed him to come downstairs and unlock the building's front door to which Mr. Bailey responded, "thank you," and hung up. Throughout this conversation, the petitioner had his hands around Mr. Bailey's neck and began accusing him of phoning the police. Calling Mr. Bailey a liar, the petitioner strangled him until he lost consciousness. (Tr. 309-12, 428-29). When Mr. Bailey awoke, the petitioner dragged him back into the bedroom and sodomized him again, after which Mr. Bailey again lost consciousness. (Tr. 313-14). At that point, Mr. Rayam, who had drunk a bottle of champaign and a bottle of wine, fell asleep. Afraid to move for fear of waking and provoking the petitioner, Mr. Bailey laid there for several hours. (Tr. 315). When Mr. Bailey did finally attempt to get up, Mr. Rayam woke up and sodomized Mr. Bailey again. When Mr. Bailey told Mr. Rayam that he had to go to work, the petitioner responded, "you have to fuck me before you can leave," which Mr. Bailey did. (Tr. 316-17).
The two men left the apartment together on the morning of February 28 and went their separate ways. Mr. Bailey went to work and immediately called his business partner, Daniel Abelson, to tell him what had happened. At Mr. Abelson's suggestion, Mr. Bailey agreed to go to the police and to a doctor. Mr. Bailey also called the Anti-Violence Project to report the attack. (Tr. 319-20, 400, 558-60). That afternoon he met with both Dr. Howard Grossman, his personal physician, and nurse Jennifer Albrecht, and gave them a full account of the past two days. They checked his throat, neck, and vertebrae, but did not perform a rectal examination. (Tr. 434-41, 648-49). Dr. Grossman told Mr. Bailey that if he developed any rectal discomfort, he would refer him to a surgeon. (Tr. 436). The nurse's report from Mr. Bailey's visit reflected that he had scratches all over his neck and suffered from psychological trauma, but it did not mention sexual assault. Dr. Grossman did not make any notes of his own from the visit. (Tr. 654-57).
Later that day, Mr. Bailey met with Police Officer Lisa Nelson, the Anti-Violence contact person at the precinct. She filled out a domestic incident report, charging Mr. Rayam with "harassment," and sent Mr. Bailey to the courthouse to obtain a protective order the next day. (Tr. 443-44, 449-51, 456-57). The person who interviewed Mr. Bailey there told him that the potential charges were "much worse" than the report indicated and instructed him to go back to the precinct for "further charges," which he did. (Tr. 451, 459-61).
After the crime, Mr. Bailey left his apartment and moved in with friends. The petitioner began calling Mr. Bailey and leaving daily messages on his answering machines at home and work, many containing death threats. On March 25th, Mr. Rayam phoned Mr. Bailey and told him, "I can't control myself any longer, and I am going to get after you." (Tr. 321-22, 326).
On April 7, the petitioner phoned Mr. Bailey's office and informed a co-worker, Andrew Federici, that he was in Hawaii. (Tr. 577). Mr. Federici believed that the call originated from Mr. Bailey's apartment so he tried to reach Mr. Bailey but was unable to. He then alerted another co-worker, who he knew was in touch with the police. (Tr. 578). Later that day, accompanied by detectives Michael Kane and Kathleen Severino and co-worker Joe Zanone, Mr. Bailey went to his apartment. (Tr. 328-29, 602, 685, 718-20). The door was unlocked but no one was there. (Tr. 329, 721). Meanwhile, Mr. Zanone, who had chosen to remain on the street, saw Mr. Rayam watching him from across the street. (Tr. 329, 685-86, 721). He immediately informed the three in the apartment and they all pursued Mr. Rayam in a squad car. (Tr. 330, 603, 687-88, 722). When they caught up to the petitioner, the detectives identified themselves as police officers and started to handcuff Mr. Rayam. He turned and punched both of them in the face. With the help of a bystander, the police were finally able to subdue him. A long hunting knife was recovered from Mr. Rayam's waistband. (Tr. 330-31, 604-06, 615-18, 688-90, 722-24).
Upon returning to his apartment, Mr. Bailey found a backpack belonging to Mr. Rayam containing a knife, a pair of handcuffs, a set of glasses, binoculars, clothing, fruit, plane tickets, a birth certificate, and a wire similar to one Mr. Bailey used to start his jeep. (Tr. 332, 339-42). Procedural History A New York County grand jury indicted the petitioner on charges of burglary in the first degree, kidnapping in the second degree, five counts of sodomy in the first degree, and two counts of sexual abuse in the first degree based on the events of February 27-28; menacing in the second degree based on the telephone calls between February 27 and April 7; and burglary in the second degree based on the events of April 7. (Affidavit of Beth J. Thomas dated August 24, 2001 ("Thomas Aff."), Exh. A).
On February 27, 1996, after a full trial, Handy Rayam was found guilty of two counts of sodomy in the first degree, one count of sexual abuse in the first degree, one count of unlawful imprisonment in the second degree, one count of burglary in the second degree, one count of menacing in the second degree, and one count of criminal trespass in the second degree. Mr. Rayam was acquitted of three counts of sodomy in the first degree, kidnapping in the second degree, burglary in the first degree, one count of burglary in the second degree, one count of sexual abuse in the first degree, and one count of criminal trespass in the second degree. (Tr. 966-68). On March 12, 1996, Mr. Rayam's trial counsel filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law ("CPL") § 330.30(1), arguing that the jury rendered inconsistent verdicts with respect to the sodomy counts and that the trial court should not have granted the prosecution's belated request for a charge on the lesser included offense of burglary in the second degree. (Thomas Aff.) On March 20, 1996, the trial court denied counsel's motion to set aside the verdict and sentenced Mr. Rayam to concurrent prison terms of from four to twelve years on each of the sodomy counts, two and one-half to seven and one-half years on the burglary counts, and two to six years on the sexual abuse count. He was also sentenced on the remaining counts to three concurrent sentences of one year. (S. Tr. 3, 6-7, 29, 30, 33).
"S. Tr." refers to the sentencing transcript.
On August 21, 1996, the petitioner filed a pro se motion pursuant to CPL § 440.10 in which he argued that his conviction should be vacated because of ineffective assistance of trial counsel and prosecutorial misconduct. (Thomas Aff., Exh. C). The Supreme Court denied this motion on January 9, 1997 (Thomas Aff., Exh. E), and on March 16, 1997, the petitioner moved in the Appellate Division, First Department, for permission to have his appellate counsel re-submit his CPL § 440.10 motion in an intelligible manner, and to have that motion consolidated with his direct appeal. (Thomas Aff., Exh. F). On April 24, 1997, the Appellate Division denied his request, with leave to renew after appellate counsel had received the record. (Thomas Aff., Exh. G).
In July 1998, Mr. Rayam's newly appointed counsel filed an appellate brief. In it, he argued that: (1) the convictions were against the weight of the evidence because the jury convicted Mr. Rayam of seven charges and acquitted him of eight charges, even though all were part of an integral account of a single witness; and (2) the trial court erred when it allowed a court officer to instruct the jurors to stop deliberating for the evening. (Thomas Aff., Exh. H). The Appellate Division affirmed Mr. Rayam's conviction on May 11, 1999, People v. Rayam, 261 A.D.2d 182, 691 N.Y.S.2d 27 (1st Dep't 1999), and on May 18, 1999, the petitioner's appellate counsel requested leave to appeal to the New York Court of Appeals on the weight of the evidence claim. Leave to appeal was granted on July 6, 1999. People v. Rayam, 93 N.Y.2d 1005, 695 N.Y.S.2d 751 (1999).
Before the Court of Appeals ruled on his appeal, Mr. Rayam filed a second pro se motion pursuant to CPL § 440.10 on December 14, 1999, in which he repeated his claims of prosecutorial misconduct and ineffective assistance of trial counsel. (Thomas Aff., Exh. P). This motion was denied by the Supreme Court on April 7, 2000. (Thomas Aff., Exh. R). Leave to appeal denial of this 440.10 motion was denied on June 22, 2000. (Thomas Aff., Exh. S).
On March 28, 2000, the petitioner applied for a writ of error coram nobis claiming that his appellate counsel was ineffective. Specifically, he argued that his appellate counsel should have raised a number of claims relating to evidentiary issues, as well as alleged jury charge errors, prosecutorial misconduct, and ineffective assistance of trial counsel. (Thomas Aff., Exh. T). The Appellate Division denied the application on September 21, 2000. (Thomas Aff., Exh. W). The petitioner then filed a second coram nobis application on November 2, 2000, once again raising the issue of ineffective assistance of appellate counsel. (Thomas Aff., Exh. X). Treating it as a motion for re-argument, the Appellate Division denied it on June 14, 2001. (Thomas Aff., Exh. Z).
Mr. Rayam's conviction was unanimously affirmed by the New York Court of Appeals on April 11, 2000. People v. Rayam, 94 N.Y.2d 557, 708 N.Y.S.2d 37 (2000). The petitioner filed this habeas corpus petition on January 29, 2001, arguing that his conviction should be overturned because of ineffective assistance of appellate counsel.
Discussion
In order to obtain the reversal of a conviction due to ineffective assistance of counsel, the petitioner must demonstrate that (1) counsel's performance was deficient, and (2) the deficient performance was prejudicial to the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). This standard also applies to assistance of appellate counsel. See McKee v. United States, 167 F.3d 103, 106 (2d Cir. 1999); Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Lawrence v. Artuz, 91 F. Supp.2d 528, 539 (E.D.N.Y. 2000).
With respect to the first prong of the Strickland test, the petitioner "must show that counsel's representation fell below an objective standard of reasonableness. . . . [T]he performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances." Strickland, 466 U.S. at 688.
"In evaluating the prejudice component of the Strickland test, a court must determine whether, absent counsel's deficient performance, there is a reasonable probability that the outcome of the proceeding would have been different." Mayo, 13 F.3d at 534.
Counsel is not obliged to identify every possible error in the record or to "raise every nonfrivolous issue that the defendant requests." Jones v. Barnes, 463 U.S. 745, 754 n. 7 (1983). Also, there is a "strong presumption of attorney competence," and the court's standard of review of an appellate counsel's performance is "highly deferential." Kimmelman v. Morrison, 477 U.S. 365, 381, 383 (1986). Moreover, a reviewing court should not second guess reasonable professional judgments made by appellate counsel. See Jones, 463 U.S. at 754; McKee, 167 F.3d at 106; Mayo, 13 F.3d at 533; Avincola v. Stinson, 60 F. Supp.2d 133, 148 (S.D.N.Y. 1999). For an appellate attorney to be found ineffective for failing to raise certain issues, the court must determine that "significant and obvious" issues were abandoned while "clearly and significantly weaker" issues were pursued. Mayo, 13 F.3d at 533.
In the present case, Mr. Rayam challenges the performance of his appellate attorney, arguing that counsel chose to pursue weak arguments and forego the stronger ones that the petitioner advanced in his coram nobis applications and has now renewed here. The arguments that Mr. Rayam claims should have been raised include: (1) the trial court's instructions improperly coerced the jury's verdict; (2) the trial court failed to give limiting instructions to the jury regarding the petitioner's uncharged crimes; (3) the trial court's charge on the petitioner's decision not to testify denied him his right against self-incrimination; and (4) trial counsel was ineffective. (Petition for a Writ of Habeas Corpus ("Petition") at 5-6). Mr. Rayam further argues that appellate counsel raised arguments that "lacked merit" and "had little chance of success." (Statement of Facts Supporting Each Ground for Writ of Habeas Corpus ("Pet. Memo.") at 3).
To the contrary, appellate counsel prepared a 32-page detailed brief raising plausible arguments. In it, appellate counsel argued that the convictions were against the weight of evidence because the jury convicted on some charges and acquitted on others and also that the petitioner was denied his right to be present at all material stages of his trial when the court delegated to the court officer the responsibility to instruct the jurors to cease their deliberations at the end of the day. (Thomas Aff., Exh. H). This approach was reasonable. The Appellate Division reached the merits on both of these arguments in its decision affirming the petitioner's conviction. Rayam, 261 A.D.2d at 182-83, 691 N.Y.S.2d at 27-28. In addition, the New York Court of Appeals granted leave to hear the weight of the evidence claim, further confirming the serious value of appellate counsel's argument. As to the issues that were not raised, it is well established that the appellate attorney "need not advance every argument, regardless of merit, urged by the appellant." Evitts v. Lucey, 469 U.S. 387, 394 (1985); see also Jameson v. Coughlin, 22 F.3d 427, 429 (2d Cir. 1994).
Under these circumstances, appellate counsel's decision to forego the claims that Mr. Rayam argues should have been raised was objectively reasonable as illustrated below.
A. Jury Instructions
Mr. Rayam first contends that his appellate counsel erred when she failed to argue that the trial court's Allen charge and related comments coerced the jury into reaching a compromise verdict. (Pet. Memo. at 7-8).
An Allen charge is a supplemental instruction given to a deadlocked jury pursuant to Allen v. United States, 164 U.S. 492 (1896), to remind jurors about the importance of obtaining a verdict and encouraging jurors to listen to each other's arguments.
On the second day of deliberations, the jury sent the judge a note stating, "We, the jury, cannot come to any agreement or compromise except on one charge." (Tr. 951). After consulting with the parties, the judge decided to give the jury an Allen charge in which he agreed to incorporate the "sentiment" of defense counsel's suggestion that the jury "not . . . compromise their honest beliefs and convictions just to get a verdict." (Tr. 952). The trial judge then delivered a charge in which he told the jury, among other things,
I will give you a little bit of guidance: It's a philosophical fact, a fact, that one of two things happened in this trial regarding each count you are asked to consider. Either the count was proven beyond a reasonable doubt or it wasn't.
From a philosophical standpoint, one or the other of those two things happened. It remains for a jury to tell us, if possible, which of those things occurred with regard to each count. But it is philosophically impossible to have concluded a trial where one or the other of those things didn't happen.
. . .
[Y]ou folks are intelligent people. You know that sometimes a jury doesn't reach a decision. But if that were to happen, that is in the face of the jury being aware that only two possibilities exist objectively and philosophically with regard to the trial. It was either proven or it wasn't, beyond a reasonable doubt.
(Tr. 957-58). Citing to this excerpt only, the petitioner argues that the trial court refused to honor defense counsel's request to instruct the jury not to compromise their views. (Pet. Memo. at 9, 11-12). However, a portion of the jury charge should not be viewed "in artificial isolation" but must be considered "in the context of the overall charge." Cupp v. Naughten, 414 U.S. 141, 147 (1973) (citation omitted). Indeed, the full record belies Mr. Rayam's assertion. As part of the Allen charge, the court went on to state:
I am going to urge you to continue the process of your deliberations. Nobody should feel compelled to abandon a position that you are conscientiously holding. That is not the point of this chat, and it never will be the point of this chat.
Nobody in the history of civilized human beings has ever been prevailed upon, persuaded by reason and logic to change their mind if that reason and logic is interspersed with personal comments, raised voices, anger or vituperations. Nobody came here for that purpose. I am not suggesting that that's going on.
. . .
But you should discuss again; throw everything open for discussion. If after the discussions, at a point you are satisfied that you are willing to alter a position for the kinds of reasons I made reference to yesterday, fine. Nobody is suggesting that you abandon a conscientiously-held decision once you have heard the reasonable and logical arguments that are countered to that.
(Tr. 959-60). Contrary to Mr. Rayam's assessment, these instructions adequately conveyed the message sought by defense counsel.
Later that afternoon, the jury sent another note to the judge asking, "We, the jury[,] request to know whether or not there is, in fact, a charge of second or third degree sodomy? If so is this a charge we can consider?" (Tr. 963, 965). After consultation with the parties, the judge responded, "There are no other applicable sodomy charges for you to consider." (Tr. 964). The jury continued deliberating and later that day came back with a verdict. (Tr. 966). Mr. Rayam identifies several additional statements made by the trial judge during the course of the trial which "coerced the jury" into a compromise including, "Unless I get hit by a truck, I am here to 2002. I guarantee you I could decide this case correctly." (Pet. Memo. at 9-10).
Mr. Rayam contends that the two notes from the jury and the corresponding responses from the judge "combined to create a substantial likelihood of jury confusion." (Pet. Memo. at 11). He further contends that the jury compromised, illustrated by the fact that they "split the difference, acquitting appellant of eight charges and convicting him of seven" and that the failure of his appellate counsel to raise these issues deprived him of a fair trial. (Pet. Memo. at 8, 15).
To the extent that the petitioner argues that appellate counsel should have argued that the jury verdict was not unanimous (Pet. Memo. at 8, 10-11, 16), the trial transcript belies this assertion. The record indicates each juror was individually polled and each responded that he or she agreed with the verdict. (Tr. 968-70).
Mr. Rayam's argument fails for several reasons. First, appellate counsel surely recognized that such an argument would have been unpreserved for appellate review. "Under New York law, a defendant must object to an alleged error in a jury instruction before the trial court in order to preserve the issue for appeal." Reyes v. Keane, 118 F.3d 136, 138 (2d Cir. 1997) (citing CPL § 470.05(2)). A review of the trial transcript reveals that defense counsel never objected to the court's Allen charge nor to any of the additional comments that Mr. Rayam finds objectionable. (Tr. 66, 226-27, 957-58, 960).
Second, even if the claim had been preserved, the fact that the judge emphasized to the jurors several times that they should not "abandon a conscientiously-held decision" makes the claim less likely to have succeeded on grounds that it was coercive. See United States v. Ruggiero, 928 F.2d 1289, 1299 (2d Cir. 1991) ("[C]autionary language counselling jurors not to surrender any conscientiously held views . . . negate[s] coercion."); see also Smalls v. Batista, 191 F.3d 272, 279 (2d Cir. 1999) (necessary component of Allen charge requires trial judge to admonish jurors not to surrender conscientiously held beliefs). Under the circumstances, it can hardly be said that appellate counsel's decision to forego this claim "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688.
And finally, to the extent that the petitioner now argues that appellate counsel failed to adequately demonstrate that the jury improperly compromised when it reached its verdict, the record indicates that this issue was thoroughly raised by appellate counsel in his papers to both the Appellate Division and the Court of Appeals as part of his weight of the evidence claim. (Thomas Aff., Exh. H at 18-25, Exh. M at 19-36).
For these reasons, appellate counsel was not objectively unreasonable for foregoing this claim.
B. Instructions on Uncharged Crimes
Mr. Rayam next argues that appellate counsel should have raised the issue that the trial court failed to instruct the jury regarding the use of uncharged crimes evidence. (Pet. Memo. at 32). The uncharged crimes that Mr. Rayam is referring to are his possession of a hunting knife when he was arrested and his having resisted arrest. (Tr. 330-31, 603-06, 618-20, 689-90, 723-24).
Again, Mr. Rayam fails to show that his appellate counsel was objectively unreasonable for failing to raise this claim. First, this issue was unpreserved at trial, as required by New York law, since counsel neither sought a limiting instruction nor protested the lack of one. (Tr. 766-73, 916). See People v. Williams, 50 N.Y.2d 996, 998, 431 N.Y.S.2d 477, 478 (1980). Second, a review of the trial transcript demonstrates that the petitioner was not prejudiced by the lack of limiting instructions. Trial counsel attempted to show through his cross-examination of the police officers that Mr. Rayam had never been charged with criminal possession of a weapon or with resisting arrest. (Tr. 621-22). In summation, trial counsel argued that the jury could not consider the evidence of the knife or the struggle at Mr. Rayam's arrest because he was not charged with crimes in connection to those things. (Tr. 812-13). If the court had given the standard limiting instructions, it would have informed the jurors that, although they could not use the evidence as proof that Mr. Rayam had the propensity to commit the crimes charged, they could use it for other purposes. See People v. Vargas, 88 N.Y.2d 856, 858, 644 N.Y.S.2d 484, 485 (1996); People v. Bolling, 120 A.D.2d 601, 601-02, 502 N.Y.S.2d 77, 77 (2d Dep't 1986). Specifically, the evidence of Mr. Rayam's resistance was probative of his consciousness of guilt and the possession of a knife was probative of his intent to commit a crime inside Mr. Bailey's apartment, a requisite element of the burglary charge. See People v. Perpepaj, 249 A.D.2d 223, 224-25, 673 N.Y.S.2d 363, 364-65 (1st Dep't 1998) (evidence that defendant possessed burglar's tools and resisted arrest indicates requisite intent to commit a crime and consciousness of guilt). Thus, under the circumstances, it was not surprising that appellate counsel did not raise this unpreserved issue on direct appeal.
C. Instructions on Failure to Testify
The petitioner next argues that appellate counsel failed to raise the issue that the trial court's instructions and additional comments drew attention to the petitioner's failure to testify, thus violating his right against self-incrimination. (Pet. Memo. at 29). Specifically, Mr. Rayam finds fault with the following statement made by the court during voir dire:
A defendant who, obviously, does not want to be here bears no burden at all. The defendant is presumed to be innocent. Consequently, he bears no burden of proving otherwise.
To emphasize how little a defendant has to do, the defendant doesn't have to testify; doesn't have to call witnesses. The defendant doesn't even have to ask his or her lawyer to cross-examine or ask the people testifying against him anything. A person accused can simply put their hands in their head [sic] on the table and look over to the prosecutor and say, "You brought the charges. Prove them, if you can. Don't look to me. I don't want to be here. I am innocent. You prove it."
(Tr. 62-63). Mr. Rayam argues that the "colorful language" chosen by the judge "carried the strong implications that appellant's decission [sic] to remain silent evidenced an arrogant attitude" and a "dare to the prosecution" to prove the case. (Pet. Memo. at 29-30). Contrary to Mr. Rayam's assessment, the language chosen by the judge is neither incorrect nor prejudicial on its face. Moreover, the judge reiterated the petitioner's right to remain silent at two additional points during the trial. At one point during voir dire the court stated,
If the defendant testifies, you listen to what he has to say. If he doesn't testify, you will hear me say the fact that he doesn't testify is not something that you can hold against him. It doesn't affect the case one way or the other. . . . It rises or falls on the People's case. The defense does not participate. It's not a thing you can consider.
(Tr. 160). And finally, in the court's last charge to the jury, the court stated, "The fact that the defendant did not testify, that's not a factor from which any inference adverse to him may be drawn." (Tr. 893). This language is almost identical to that recommended in CPL § 300.10(2) ("the fact that he did not testify is not a factor from which any inference unfavorable to the defendant may be drawn"). Thus, the instructions conveyed the appropriate principles of law and assured that the jury was well informed of the petitioner's right to remain silent. In addition, Mr. Rayam's trial attorney apparently found the language appropriate since he raised no objection to the charge on this issue. (Tr. 915-22). See People v. Autry, 75 N.Y.2d 836, 839, 552 N.Y.S.2d 908, 909-10 (1990). Given the benign nature of the language used and the fact that the issue was unpreserved for appellate review, it was objectively reasonable for appellate counsel to forego this issue on appeal.
D. Ineffective Assistance of Trial Counsel
Finally, Mr. Rayam argues that his appellate counsel was ineffective for failing to raise his trial counsel's ineffectiveness on appeal. Specifically, Mr. Rayam claims that his trial counsel: (1) failed to interview Dr. Grossman, the victim's physician, prior to trial; (2) failed to interview or secure the attendance of the victim's nurse, Jennifer Albrecht; (3) failed to interview or secure the attendance of Police Officer Lisa Nelson; (4) failed to request the dismissal of the indictment on the grounds that certain documents were not turned over to the petitioner until after he was indicted; (5) failed to request that the court interrogate jurors on the issue of racial prejudice during voir dire; (6) failed to secure the attendance of a medical expert; (7) failed to keep confidential communications concerning the petitioner's HIV status; and (8) failed to request that the trial judge give the jury a charge regarding the petitioner's uncharged crimes. (Petition at 5). For the reasons discussed below, none of these claims have merit.
This final argument is substantively the same argument as the one advanced earlier, framed as a trial court error. It fails here for the same reasons and will not be addressed again.
1. Failure to Interview the Doctor Prior to Trial
Mr. Rayam first argues that trial counsel erred when he failed to interview Dr. Grossman, Mr. Bailey's physician, prior to trial, even though trial counsel had subpoenaed him. As a result, his trial lawyer was "obviously surprised" that Mr. Grossman's testimony corroborated Mr. Bailey's account of the sexual attack, even though the medical reports contained no mention of such an assault. (Pet. Memo. at 17-18).
Although a review of the trial transcript confirms this account (Tr. 628-38), Mr. Rayam has not shown that the failure by his trial counsel to interview Mr. Grossman prior to trial denied the petitioner a fair trial, or that "but for" this purported lack of preparation, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. At trial, counsel was able to introduce medical records that lacked any specific reference to the sexual attack. (Tr. 753). Counsel then used these records to vigorously question Dr. Grossman about the lack of any mention of sodomy or sexual abuse. (Tr. 655-57, 659-70, 679-80). As a result, the jury heard counsel argue that Mr. Bailey never told his physician about the attack, thus undermining Mr. Bailey's and Dr. Grossman's credibility. (Tr. 797-800).
Therefore, any deficiency on the part of trial counsel did not result in prejudice, such that the trial result would have been different. Thus, any challenge to appellate counsel on the basis of failing to raise this ground also fails.
2. Failure to Secure the Nurse for Trial
Mr. Rayam next argues that trial counsel erred when he failed to secure the attendance of the author of the medical records, Nurse Jennifer Albrecht, for trial. (Pet. Memo. at 18). Since the records contained no language specifically alluding to a sexual attack, Mr. Rayam argues that the author would have "cast grave doubt upon the prosecution['s] case." (Pet. Memo. at 19).
In general, the "decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987). And trial strategy decisions, "if reasonably made, cannot support an ineffective assistance claim." United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992) (internal quotations omitted).
In this case, counsel's decision not to call Nurse Albrecht to testify was not an unreasonable trial tactic. Counsel was able to place the medical records themselves in evidence, thus challenging Mr. Bailey's testimony that he had reported the sexual incident to the doctor and nurse. Mr. Rayam's argument assumes that Ms. Albrecht's testimony would have conformed to the medical reports, but it is just as possible she would have undermined his case. According to Dr. Grossman, Nurse Albrecht was only present for part of his conversation with Mr. Bailey, so it is mere speculation that she would have confirmed that there was no discussion regarding a sexual attack. (Tr. 657). In addition, by introducing the notes into evidence but not proffering the nurse's testimony, counsel avoided the risk of having Nurse Albrecht confirm Mr. Bailey's testimony.
Thus trial counsel's strategic decisions were reasonably made and cannot support an ineffective assistance claim.
3. Failure to Secure Officer Nelson for Trial
Next, the petitioner contends that trial counsel should have secured the author of the Domestic Incident Report, Police Officer Lisa Nelson. This report alludes to harassment but, like the medical records, fails to mention sexual assault. (Pet. Memo. at 20).
This argument fails for the same reason as the previous one. Trial counsel was able to introduce the Domestic Incident Report in evidence and then use it to argue that Mr. Bailey's credibility was once again undermined. (Tr. 795-96). Since calling Officer Nelson to testify would have run the risk of weakening the impact of the report, choosing not to call her cannot be said to be unreasonable. Here again, trial counsel's performance was appropriate.
4. Failure to Request Dismissal of Indictment
Mr. Rayam next argues that trial counsel should have requested the dismissal of the grand jury indictment on the grounds of prosecutorial misconduct. Specifically, he alleges that the prosecution failed to present the medical records and the Domestic Incident Report to the grand jury and to him. He further argues that the prosecution failed to disclose the existence of the "exculpatory witnesses," presumably the authors of the reports, Officer Nelson and Nurse Albrecht. (Pet. Memo. at 22). As a result of the prosecution's failure to turn over this "obviously exculpatory" material, the petitioner did not request that the authors testify for him at the grand jury proceeding because he did not know they existed. (Pet. Memo. at 23).
The petitioner's argument fails for several reasons. First, as noted above, it is questionable whether the authors' testimony or the records would be exculpatory. Second, under New York law, prosecutors maintain "broad discretion in presenting their case to the Grand Jury" and need not "present all of their evidence tending to exculpate the accused." People v. Mitchell, 82 N.Y.2d 509, 515, 605 N.Y.S.2d 655, 658 (1993) (citation omitted). And finally, to the extent that his trial counsel's performance was deficient, an error in grand jury proceedings is generally rendered harmless by a trial jury's subsequent finding of guilt beyond a reasonable doubt. See United States v. Mechanik, 475 U.S. 66, 70 (1986). This is particularly so here where the records Mr. Rayam's deems "obviously exculpatory" were available at trial and admitted in evidence. The jury was given the opportunity to decide whether they were exculpatory or not and chose the latter, concluding that Mr. Rayam was guilty beyond a reasonable doubt. Thus, the petitioner suffered no prejudice sufficient to satisfy the Strickland test.
5. Failure to Interrogate Jurors on Racial Prejudice
Mr. Rayam next argues that he received ineffective assistance of counsel because his trial counsel did not question the jurors on interracial relationships or other prejudices during voir dire. Specifically, the petitioner argues that because the O.J. Simpson case was decided just four months before his trial, it was incompetent of his attorney not to examine the jury regarding racial prejudice. (Pet. Memo. at 27).
This argument is also without merit. First, "[a]n attorney's actions during voir dire are considered to be matters of trial strategy." Nguyen v. Reynolds, 131 F.3d 1340, 1349 (10th Cir. 1997) (citing Teague v. Scott, 60 F.3d 1167, 1172 (5th Cir. 1995)); see also Hughes v. United States, 258 F.3d 453, 457 (6th Cir. 2001). Second, "the mere fact that petitioner is black and his victim white" does not entitle the defendant to have prospective jurors questioned about racial prejudice. Turner v. Murray, 476 U.S. 28, 33 (1986). In addition, as the court record indicates, Mr. Rayam's trial counsel did question the jury panel on several issues, exploring possible prejudices pertinent to the defendant's case. (Tr. 221-32).
And finally, even if counsel's voir dire performance was constitutionally deficient, Mr. Rayam has failed to show that he was prejudiced by his counsel's conduct. He has alleged no evidence of jury prejudice and no facts in the record support any inference that race affected the outcome. Again, it is understandable that appellate counsel refused to raise this issue on appeal.
6. Failure to Secure a Medical Expert
Next, the petitioner argues that trial counsel should have secured a medical expert to testify that "there is very often visible evidence of injury to the rectum when individuals engage in voluntary anal intercourse." (Pet. Memo. at 24). This testimony, according to the petitioner, would have countered Dr. Grossman's testimony that Mr. Bailey's symptoms were consistent with patterns exhibited by rape victims. (Pet. Memo. at 23-24). The expert could have further testified that an attack such as described by Mr. Bailey would have "left severe damage to the rectum." (Pet. Memo. at 24).
Whether or not to call a witness at trial is a strategic one. See Nersesian, 824 F.2d at 1321. Here, trial counsel's decision not to call a medical expert was not unreasonable. As the record indicates, the petitioner's counsel thoroughly questioned the prosecution's medical expert, Dr. Grossman, on the issue of rectal damage on cross-examination. (Tr. 657-80). Trial counsel also cross-examined Mr. Baily on this subject and made the very point that Mr. Rayam argues a medical expert could have made, namely that there should have been visible evidence of rectal injury where severe force, as described by Mr. Bailey, was used. (Tr. 422-23).
Thus, since the absence of expert testimony on this issue did not prejudice the petitioner, the strategic decision by trial counsel does not amount to ineffective assistance.
7. Failure to Keep HIV Status Confidential
Lastly, Mr. Rayam alleges that trial counsel failed to keep information about his HIV status confidential. Specifically, he alleges that his counsel informed the prosecutor who then informed the "open court" that he was HIV positive. (Pet. Memo. at 25).
This argument is also without merit. First, it is unclear from the trial transcript whether the prosecutor learned of Mr. Rayam's HIV status from Mr. Bailey first or from the petitioner's trial counsel. (Tr. 270). Even if trial counsel did violate the attorney-client privilege, Mr. Rayam has failed to show that "but for" the claimed error, the outcome of the proceeding would have been different. Strickland, 466 U.S. at 694. It is clear from the trial record that all conversations regarding the petitioner's health status took place between the attorneys and the judge. (Tr. 254, 256-57 263-73, 348-49, 365-71, 445-447, 674, 751). Since nothing regarding Mr. Rayam's medical condition was ever aired before the jury, no prejudice resulted.
Thus, the conduct of Mr. Rayam's trial attorney did not fall below an objective standard of reasonableness, nor did it prejudice the petitioner. Accordingly, the petitioner's appellate counsel was not ineffective in declining to pursue an ineffective assistance of trial counsel claim.
Conclusion
For the reasons set forth above, I recommend that Mr. Rayam's application for a writ of habeas corpus be denied and his petition be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days to file written objections to this report and recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable George B. Daniels, Room 410, 40 Foley Square, New York, New York 10007 and to the chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.