Summary
denying Rogers's petition for a writ of habeas corpus
Summary of this case from Rogers v. ArtuzOpinion
00-CV-2718 (JBW), 03-MISC-0066 (JBW)
July 7, 2003
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was put on trial for the January 1993 homicide of a woman with whom he was having an affair and who was found dead in her automobile with two gunshot wounds to her head. Key evidence were tape recordings of conversations between petitioner and Michael Mathis, a convict and close friend of petitioner, who had alerted police that petitioner admitted to having killed the victim. Among other incriminating evidence in the tape recordings was the following conversation between petitioner and Mathis, in which petitioner details precisely the manner in which he killed the victim:
JR She was p, I was inside. MM Uh huh. JR In the passenger seat. She wa, we were at a stop sign. And I was making all nice, nice and I told her all the shit this MM This was so she'd be . . . JR All kind o bullshit. MM Yeah, yeah. JR Everything. Right, she started pulling up and the whole time I'm like this when I'm talking, I'm just checking, I'm waiting till I get to a good spot by the woods. MM Uh huh. JR Get her nice and quiet and I saw the shit was clear, I was like a boom. The first one she just went like this. Her head hit the steering wheel. MM Word? JR Then I thought I'd just hit it one more time as I go out, boom and I dive out into the woods and ran all the way around, all the way through Wyandanch, all the way fucking down Grant Boulevard, all the way to fuck, all the way back to my mother's. I came in dried off the shit and I was like this, a, fucking relaxing man. MM Well you know, you just jogged, you just jogged about 20 miles. JR I'm glad I Boy cause I was gone. My was MM That shit, that shit, that shit got me buggin man cause I seen, when I seen two flashers and I seen, how they, how they like, pushed together. JR Yeah. MM I'm like. JR The car, the car hit something cause when I was running through the woods I heard it hit something. MM Oh yeah. JR You know, and I, I let the car just keep going cause I figured that would really fuck'em up. MM From the way they showing in the car, it didn't hit nothing. JR It sounded like it hit something man. MM Look. Look. JR They didn't show it on that but it MM No, I'm saying, they, they showing an actual picture. JR of when, where the car. MM of the car. JR Yo, you know what the detectives did? They showed me pictures of her laying in the puddle of blood, all this shit. MM Get the fuck out of here. JR I was like why you showing me all that shit. You trying to get me to crack up. MM Look at this shit. Watch. They show you the actual car. Where, where it's sitting. (background tv) JR They pictures all over fucking MM I can see I can see them in the I told you, by the JR They, they even had a picture of her in my school. In, in fucking 7-11. MM Watch, watch this. See? Oh, it must have hit that car. JR Yeah, that must have MM Look, look, look, look, look. Yeah, ok you right. JR I know I heard that shit MM Juan, cause I said that's the fucking car, cause it says actual, see? JR Yeah. MM Actual footage. I must have hit JR Actually hit the car right there. MM I want to see that shit. I want to see that shit. Watch that. It must have hit that fucking car. JR And you when I went into woods, I can hear another car coming. MM You can hear another car coming? JR Yeah, like another car that was coming I was hauling ass. MM Ah hah. JR And I kind of, I dropped the shit in the gutter . . . MM Huh? JR You know where the gutter, you know one of the gutters in the street? MM Oh yeah, yeah, yeah, yeah. JR I dropped some shit, they never find that. MM Nah. Hell no, they won't search no fucking gutter. You know what I'm saying? Won't search no fucking gutter. JR 20 years from now they'll find that shit man. MM Yeah. JR Be on Larry King or the Unsolved Mysteries. MM Yeah, yeah. That shit won't be nothing. Cause that shit what bugged me out. Seeing that mother fucker running through the par, you know what I'm saying? JR MM Yeah, right. JR Sandy, man she was a good person but she fucked up.
Brief [on Direct Appeal] of Respondent, Ex. C at 19-22 (October 30, 1994 Transcript).
Petitioner's alibi defense was that he was at his mother's house watching television. He testified that he told Mathis that he had committed the murder out of pure boasting and that he had made up all the details about the murder. He also suggested that the murder was in fact committed by one of his Kung Fu students, "Bambi," whom he alleges confessed to him that she had shot the victim because she was jealous of the way petitioner treated the victim (another of his students). According to petitioner, Bambi was also afraid that the victim would cause problems for petitioner's school. Petitioner explained that he never alerted police to Bambi's confessions because she had "mental problems" and he did not believe her. Trial Tr. at. 1418.
Petitioner was convicted of second degree murder and was sentenced to 25 years to life in prison. His conviction was affirmed by the Appellate Division on direct appeal. Leave to appeal to the New York Court of Appeals was denied. The history of petitioner's state collateral proceedings is rather labyrinthine. For present purposes, it is sufficient to note that petitioner's motions to vacate judgment were denied by the trial court, that leave to appeal to the Appellate Division from the denials of his motions to vacate judgment was denied, and that his application for a writ of error coram nobis was denied by the Appellate Division.
In the present application for a writ of habeas corpus, petitioner makes a single claim: that the prosecution commited a Brady violation by failing to turn over to the defense evidence that Mathis was a prime suspect in an unrelated double homicide investigation at the time he testified against petitioner. The petition is not time-barred. Petitioner's "amended" petition, which respondent contends is untimely and should be dismissed, contains nothing more than an amplification-prompted by petitioner's discovery of what he terms "new" evidence-of the Brady claim he first submitted in his initial, timely petition. Although that initial petition was couched in terms of ineffective assistance of counsel, petitioner's amended claim is in substance the same.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhiman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750.
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court "uses language such as "the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). When a state court "says that a claim is "not preserved for appellate review' and then ruled "in any event' on the merits, such a claim is not preserved." Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996).
V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose "to ensure a fair trial" and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 6941 See also United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, No. 99-2261, 2003 U.S. App. LEXIS 2511, at *3 (2d Cir. Feb. 12, 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Wordy. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudic v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id (quotations omitted).
VI. Certificate of Appealability
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A certificate of appealability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).
VII. Analysis of Claims
Petitioner claims the prosecution commited a Brady violation by failing to turn over to the defense evidence that Mathis was a prime suspect in an unrelated double homicide investigation at the time he testified against petitioner. It is a nettlesome question whether this claim should be deemed to have been procedurally barred by the state courts and therefore unreviewable in a habeas corpus proceeding. Nonethless, it is unnecessary to decide the procedural bar question because the claim is meritless and undeserving of habeas relief.
The prosecution in a criminal matter has a constitutional obligation to disclose exculpatory evidence to the defendant. See Brady v. Maryland, 373 U.S. 83 (1967), Giglic v. United States, 405 U.S. 150 (1972). The evidence must, however, be material. Gigho v. United States, 405 U.S. 150, 154 (1972). Exculpatory evidence is considered material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Ilagley, 473 U.S. 667, 682 (1985)). Nondisclosure merits relief only if the prosecution's failure "undermines confidence in the outcome of the trial."' Kyles v. Whitly, 514 U.S. 419, 434 (1995) (quoting Bagley, 473 U.S at 678).
In his initial motion to vacate judgment, petitioner claimed that the prosecution failed to disclose its knowledge that Mathis was a prime suspect in an unrelated double homicide that occurred after his release from prison but before his testimony in the instant case. In response, the prosecution stated that at the time it had no information in its possession concerning Mathis's involvement in the murders and that the Suffolk County Police Department was not involved in that investigation. All information in the possession of the prosecution relating to Mathis had been turned over to the trial court for an in camera inspection and then to petitioner. In denying petitioner's motion to vacate judgment, the trial court indicated that the claim was procedurally barred because it could have been raised on direct appeal:
Concerning the status of Michael Mathis as a suspect in a Staten Island homicide, the People indicate that all the information in the prosecution's possession pertaining to that witness' relationship with the Staten Island murders was provided to the trial court for an in camera inspection. The Court reviewed the documents and provided the defendant with that portion thereof which is considered to be Brady material. The decision of the Court, after its in camera inspection, cannot be attacked on this motion. It is properly the subject of an appeal to a superior court. The defendant has, however, failed to include this issue in his direct appeal and is precluded from raising the mater in this motion (C.P.L. § 440.10[2][c]).
Subsequent to the defendant's conviction, Michael Mathis was in fact indicted in the United States District Court for the Eastern District of New York involving four counts of violating Title 21 of the U.S. Code pertaining to a criminal enterprise, conspiracy to distribute narcotics and distribution of narcotics. The defendant pled guilty to 21 U.S.C. § 848(3)(1)(a), 21 U.S.C. § 846 and 18 U.S.C. § 924(c)(1) on October 30, 1997. The subsequent events in no way affected the credibility of Michael Mathis as a witness in the trial of this defendant in 1995.
Dec. 16, 1997 Decision at 2.
In October 2000, petitioner sought to renew his motion to vacate judgment after obtaining, through a state Freedom of Information Law request, a document that he refers to as the "Dombroski Affidavit." The Dombroski Affidavit is a copy of a March 11. 1997 affidavit for a search warrant sworn to by Joseph Dombroski, a federal Special Agent of the Drug Enforcement Agency. In the affidavit, Dombroski summarizes the New York Police Department's investigation of Mathis as a suspect in the double homicide of a heroin and cocaine trafficker and his wife. Petitioner asserts that the affidavit demonstrates that (1) the Suffolk County Police Department was involved in the double homicide investigation, and (2) that Suffolk County Detectives actually interviewed Mathis regarding those murders. The pertinent statement from the search warrant affidavit is the following:
In an attempt to assist N.Y.P.D. in this homicide investigation, Suffolk County P.D. interviewed MICHAEL MATHIS with regard to ESPINAL and the murders. Sgt. Doyle and Det. Smith of Suffolk County P.D., questioned MICHAEL MATHIS relative to the homicides. MICHAEL MATHIS stated that ESPINAL was his source of supply of four to five kilograms of cocaine per week. MATHIS further states that he visited ESPINAL on December 19, 1994 to pay a cocaine debt. MATHIS then informed the detectives that he went back to see ESPINAL on December 20, 1994 at approximately 10:00 a.m., but that no one answered the door. This statement is important to note because the time of death set by the medical examiner for ESPINAL and ESTEVEZ was December 20, 1994, between 9:00 a.m. and 9:30 a.m.
[Petitioner's] Notice of Motion, Ex. 4, Attach. A at 5 ("Dombroski Affidavit").
Petitioner's assertion, based upon the above passage, that the Suffolk County Police Department was aware that Mathis was a suspect in an unrelated homicide may or may not be true. Assuming for present purposes that members of the police department were aware that Mathis was a suspect and further imputing such knowledge to the prosecution petitioner cannot demonstrate that there is a reasonable probability that, had this evidence been disclosed to the defense, the result of the proceeding would have been different. Although Mathis was integral to the successful prosecution of petitioner, his utility to the State was largely achieved pre-trial, when he wore a wire to tape his conversations with petitioner. The overwhelming evidence of petitioner's guilt emanated from petitioner's own mouth. Mathis's testimony was of little moment, so impeaching him with evidence that he was a murderer would have vanishingly small effect on the jury's consideration of petitioner's guilt when weighed against petitioner's audiotaped admission to the murder. Habeas relief is not merited on this ground.
To the extent petitioner still intends to claim that trial counsel was ineffective for failing to raise the Brady claim, or that appellate counsel was ineffective for failing to raise the claim on direct appeal of ineffective assistance of trial counsel, his arguments are without substance. Because the underlying Brady claim is without merit, counsel was not ineffective for failing to raise it at either the trial or appellate levels.
VIII. Conclusion
Petitioner's motion for discovery is denied. The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003).