Opinion
99 Civ. 12281 (GEL)
November 7, 2002
George Rowe, New York, NY, pro se.
Bruno V. Gioffre, Jr., Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York), New York, NY, for Respondent.
OPINION AND ORDER
George Rowe, a New York State prisoner, seeks a writ of habeas corpus, challenging his conviction in New York County Supreme Court for sale of a controlled substance and sentence to an indeterminate term of four and a half to nine years in prison. The petition will be denied.
FACTS
At Rowe's trial, the prosecution presented convincing evidence of Rowe's guilt. An undercover police detective testified that on July 19, 1994, he purchased two vials of crack cocaine from Rowe on a Harlem streetcorner, paying with ten one-dollar bills whose serial numbers were pre-recorded. Another detective, who was surveilling the encounter from ten feet away, testified that she observed the undercover officer talking to Rowe. Rowe was arrested shortly thereafter by a back-up team in response to the undercover's radio report that he had just purchased cocaine. Rowe fit the description radioed by the undercover, and he was immediately identified as the seller by both the undercover and the surveillance officer. A search incident to the arrest recovered from Rowe's person the ten dollar bills that had been entrusted to the undercover officer and used for the drug purchase. People v. Rowe, No. 7163/1994, at 5-6 (N.Y.Sup.Ct. May 30, 2002) (attached to Rowe's motion to dissolve stay).
Rowe testified in his own defense and contested this account. He denied that he had sold drugs to the undercover. Rather, he testified that he had been purchasing dog food in a grocery store when he was arrested at gunpoint for no reason he could understand, and that the only money in his possession was a borrowed ten-dollar bill, not ten ones from a drug sale. The jury chose to believe the police testimony, and found Rowe guilty. Id. at 9.
Rowe was, however, acquitted of a second charge, of possession of additional vials of crack. These vials were not found during the search incident to arrest. Rather, a police officer who had not been involved in the buy-and-bust operation testified that he had found the vials in a film canister (similar to the one the undercover said the vials he purchased had been taken from) near Rowe's feet while Rowe was waiting with other prisoners at the stationhouse following his arrest. Rowe denied possessing these vials, and claimed that the officer had recovered them from a nearby bathroom and said that he would attribute them to Rowe because Rowe was a predicate felon. Id. at 7-9.
PROCEDURAL HISTORY
Rowe appealed his conviction to the Appellate Division, arguing that the trial court's refusal to grant his request for a change of counsel following jury selection for his trial denied him the effective assistance of counsel. The Appellate Division affirmed his conviction,People v. Rowe, 685 N.Y.S.2d 688 (1st Dep't 1999), and leave to appeal to the Court of Appeals was denied.
On December 10, 1999, this Court received Rowe's timely handwritten petition for habeas corpus, which advanced a number of arguments, primarily challenging the effectiveness of trial counsel and restating his factual defense. Because the ineffectiveness argument claimed additional derelictions on the part of trial counsel that had not been included in the claim made on his direct appeal, this Court stayed proceedings on the petition to afford Rowe an opportunity to exhaust his state remedies by filing a post-conviction application for relief to the state courts. Rowe v. New York, No. 99 Civ. 12281 (GEL), 2002 WL 100633 (S.D.N.Y. Jan. 25, 2002).
Rowe duly filed such an application, which was denied on May 30, 2002, by the Honorable Richard D. Carruthers, who had presided over Rowe's trial, in an exceptionally thorough opinion. People v. Rowe, No. 7163/1994, at 16. Rowe then timely returned to this Court, in accordance with the terms of the stay order, to press his federal claims, which are now ripe for decision.
DISCUSSION
Rowe's arguments, though apparently heartfelt, are not easy to disentangle. His arguments that he never had ten one-dollar bills, only a ten, and that he had never met the undercover detective simply reiterate factual contentions that were rejected by the jury. As the evidence presented was certainly sufficient to permit conviction, these arguments at best present credibility disputes that were for the jury to resolve, and do not constitute any ground for federal relief. Rowe v. New York, 2002 WL 100633, at *4-5.
Rowe's attacks on the quality of the assistance of counsel he received can be broken down into a number of claims. First, he argues that the trial court unfairly dismissed "my private lawyer" who "was doing great for me." (Pet. ¶ 12A.) Justice Carruthers, to whom the same argument was presented, found otherwise, determining from the official record of the case that Rowe had never been represented by a privately-retained attorney, and that his first appointed lawyer was relieved when he failed to file pre-trial motions. People v. Rowe, No. 7163/1994, at 12-13. These findings of the state court, which are based on indisputable court records, are binding on this Court. 28 U.S.C. § 2254 (e)(1) (2000).
Second, Rowe argues that his trial counsel did "nothing to help or assist me," and in particular failed to contact Rowe's witnesses. (Pet. ¶ 12A.) Once again, the state court found to the contrary. As the record clearly demonstrates, Rowe's trial counsel put on a vigorous defense, cross-examining the police officers, presenting Rowe's testimony, and arguing effectively to the jury that it should doubt the prosecution's case. People v. Rowe. No. 7163/1994, at 14-15. Counsel succeeded in winning an acquittal on one of the two charges against Rowe. As to the claim that counsel failed to call witnesses, Justice Carruthers noted trial counsel's statement, found credible by the state court and uncontradicted at the time by Rowe. that Rowe had never told counsel the names of any witnesses until mid-trial, and even then did not provide counsel with adequate information to contact or subpoena the purported witnesses. Id. at 8-9, 13-14. Neither in his state post-conviction motion nor in this Court does Rowe identify any witnesses, still less provide any evidence of what they would say or any account of how they would have helped his case. Id. at 14; Pet. ¶ 12A.
Third, Rowe's somewhat unfocused attack on the evidence of his guilt, read liberally as befits a pro se petition, could be taken as a claim that his lawyer adopted a mistaken strategy, by arguing that the officer made a mistaken identification rather than adopting Rowe's preferred defense that the officers were lying. (Pet. ¶¶ 12B, 12C.) But disagreement with a lawyer's strategic decisions does not establish ineffective assistance. Strickland v. Washington, 466 U.S. 668, 681 (1984).
Fourth, by attaching to his petition the table of contents page from his state appeal, Rowe may intend to incorporate by reference the argument made to the Appellate Division, that trial counsel acted against Rowe's interests by telling the trial judge that the evidence against Rowe was overwhelming, and that an irrevocable breakdown in communication between Rowe and his lawyer required replacement of counsel and rendered counsel inherently ineffective. This claim was decided against Rowe both by the Appellate Division and by the trial court on Rowe's post-conviction application. This Court cannot improve on Justice Carruthers' recitation of the record, which incontrovertibly demonstrates Rowe's obstructionism and lack of cooperation with counsel and with the court, and his belated and unconvincing claim that counsel was not advancing his interests. People v. Rowe, No. 7163/1994, at 3-5. Counsel's explanation, of course made outside the presence of the jury, was that Rowe was upset because counsel, fulfilling his professional obligation to inform his client of all options and advise him as to the course that seemed in the lawyer's best judgment most advantageous, had suggested that Rowe consider pleading guilty because of the strength of the case against him. Id. at 4. There was nothing improper in counsel's conduct, as the Appellate Division correctly found. 685 N.Y.S.2d at 688.
Finally, the trial court's refusal to replace appointed counsel based on a belated and generalized claim of lack of communication after the trial had begun did not violate Rowe's right to counsel. See, e.g., United States v. Calabro, 467 F.2d 973, 986 (2d Cir. 1972) (holding that appointed counsel may be changed during trial only for good cause, and citing cases); People v. Medina, 404 N.Y.S.2d 588, 592-93 (1978) (same). A motion to substitute counsel is addressed to the sound discretion of the trial court. United States v. Simeonov, 252 F.3d 238, 242 (2d Cir. 2001). The trial court's exercise of that discretion is evaluated based on the timeliness of the motion, the extent of the court's inquiry into the basis of the request, whether the tension between client and lawyer "was so great that it resulted in a total lack of communication preventing an adequate defense," and the extent to which defendant's own conduct contributed to the breakdown of trust. United States v. John Doe #1, 272 F.3d 116, 122-23 (2d Cir. 2001) (citation and internal quotation marks omitted). Here, the motion was belated the trig judge made an extensive inquiry into the issues underlying the motion, and counsel was able to mount an effective and partly successful defense in spite of Rowe's dissatisfaction. There was no error in refusing to discontinue the trial and appoint new counsel, let alone a violation of Rowe's Sixth Amendment rights.
Under Strickland v. Washington, 466 U.S. at 687, a defendant claiming ineffective assistance of counsel must show that counsel's performance was deficient relative to prevailing professional standards, and that counsel's deficiency prejudiced the defendant. To prevail on habeas corpus, petitioner must demonstrate that the state courts' rejection of his claim was either contrary to or an unreasonable application of this precedent. 28 U.S.C. § 2254 (d)(1) (2000). The decisions of the Appellate Division on direct appeal and the trial court on post-conviction motion, which between them rejected all of the ineffectiveness claims now presented to this Court, cannot be found to meet this standard. On the contrary, this Court agrees with their resolution of Rowe's claims.
CONCLUSION
Accordingly, for the reasons stated above, the petition for habeas corpus is denied. As petitioner has not made a showing of the denial of a constitutional right, a certificate of appealability is denied. 28 U.S.C. § 2253 (c)(2).