Ruine v. Walsh

Full title: PAUL RUINE, Petitioner, v. JAMES J. WALSH, Superintendent, Sullivan…

Court: United States District Court, S.D. New York

Date published: Jul 14, 2005

No. 00 Civ. 3798 (RWS) (S.D.N.Y. Jul. 14, 2005)

Opinion

No. 00 Civ. 3798 (RWS).

July 14, 2005

HIRSCHHORN BIEBER, Coral Gables, FL, JOEL HIRSCHHORN, ESQ., Of Counsel, Attorneys for Petitioner.

LAW OFFICES OF IRA D. LONDON, Of Counsel, New York, NY, Attorneys for Petitioner.

HONORABLE ROBERT M. MORGENTHAU, District Attorney of New York County, New York, NY, HILARY HASSLER, Assistant District Attorney Of Counsel, Attorney for Respondent.

OPINION

ROBERT SWEET, Senior District Judge

Petitioner Paul Ruine ("Ruine" or the "Petitioner"), currently incarcerated at Sullivan Correctional Facility, New York, seeks by writ of habeas corpus, pursuant to 28 U.S.C. § 2254, to vacate his conviction for murder in the second degree. The respondent James Walsh, Superintendent, Sullivan Correctional Facility (the "State"), has opposed Ruine's petition, which is denied for the reasons set forth below.

Prior Proceedings

At Ruine's trial, the prosecution presented evidence that on the afternoon of January 6, 1996, Ruine shot and killed Perry Walker ("Walker") following a verbal exchange between the two men. Ruine and his wife, Cheryl Ruine ("Mrs. Ruine"), had been driving south on Eighth Avenue in Manhattan when they got into an altercation with Walker, the driver of another vehicle. Ruine and his wife turned onto West 29th Street and pulled over, and Walker followed suit. Walker exited his own vehicle and approached the driver's side of Ruine's minivan. Leaving Mrs. Ruine in the front passenger's seat, Ruine emerged from his minivan, and he and Walker engaged in a heated argument. Ruine then drew a gun and fired at Walker repeatedly.

Upon his arrest, Ruine retained Benjamin Brafman, Esq. ("Brafman"), to represent him. Thereafter, by an indictment filed on August 2, 1996, the New York County grand jury charged Ruine with one count of murder in the second degree. On June 25, 1998, a jury in the Supreme Court, New York County, convicted Ruine of murder in the second degree, for which Ruine was sentenced to an indeterminate term of 15 years to life.

On direct appeal to the Appellate Division, First Department, Ruine argued that the evidence was legally insufficient to prove his guilt of murder in the second degree and that the jury's verdict was against the weight of the evidence. Ruine also argued that the trial court erred in excluding certain evidence regarding Walker's background and in responding to an inquiry from the deliberating jury. Finally, Ruine contended that he had been deprived of a fair trial by the prosecutor's summation. On his appeal, Ruine continued to be represented by Brafman.

Ruine's conviction was unanimously affirmed by the Appellate Division on February 4, 1999. See People v. Ruine, 685 N.Y.S.2d 47, 258 A.D.2d 278 (N.Y.App.Div. 1999). Leave to appeal to the New York Court of Appeals was denied on May 19, 1999, see People v. Ruine, 93 N.Y.2d 929, 693 N.Y.S.2d 512, 715 N.E.2d 515 (N.Y. 1999), marking the date of final judgment and the beginning of the one-year statute of limitations term in which Ruine had to file for post-conviction relief.

On May 17, 2000, through newly retained counsel, Ruine filed a post-conviction motion to vacate his judgment in the Supreme Court, New York County, pursuant to N.Y.C.P.L. § 440.10. On or about that same date he also filed a habeas petition with this Court pursuant to 28 U.S.C. § 2254, two days before the statute of limitations expired on May 19, 2000. On October 17, 2000, this Court dismissed Ruine's petition without prejudice because it contained claims which had been unexhausted at the state level.Ruine v. Senkowski, No. 00 Civ. 3798 (RWS), 2000 WL 1530020 (S.D.N.Y. Oct. 16, 2000).

On July 12, 2001, the New York Supreme Court Trial Term denied Ruine's § 440.10 motion largely on the merits but did not reach the ineffective counsel claim because Ruine refused a full waiver of his attorney-client privilege. On October 30, 2001, Ruine, proceeding pro se, filed a motion for reconsideration of the July 12 denial of his § 440.10 motion, waiving his attorney-client privilege. Brafman responded, but Ruine declined to answer. Ruine withdrew his October 30 motion for reconsideration in the state court on January 31, 2002, after filing an amended habeas petition in this Court on January 8, 2002.

In his amended petition, Ruine argues that: (i) the trial court's refusal to admit certain evidence concerning Walker deprived Ruine of his right to a fair trial and to present a defense; (ii) the trial court's supplemental instruction to the jury that it could consider Ruine's failure to call his wife as a witness at trial, its consequent reneging on its prior assurance that no missing witness instruction would be given, and its denial of Ruine's request to reopen evidence deprived Ruine of his right to a fair trial; (iii) the prosecution's summation violated Ruine's right to a fair trial insofar as the prosecution improperly commented on Ruine's absence as a witness and that of his wife; and (iv) Ruine's right to effective assistance of counsel and right to due process were violated by trial counsel's ineffective representation and the state court's refusal to convene an evidentiary hearing on ineffectiveness during post-conviction proceedings.

On June 19, 2002, this Court dismissed Ruine's ineffective assistance claim for failure to exhaust state court remedies and stayed the balance of his amended petition on the condition that he file an ineffective assistance of counsel claim with the state within 30 days and renew his habeas petition with this Court within 30 days after the state completed review of his claim.Ruine v. Walsh, No. 00 Civ. 3897 (RWS), 2002 WL 1349713 (S.D.N.Y. June 19, 2002).

On July 17, 2002, within the 30-day time limit given by this Court, Ruine renewed his § 440.10 claim with the state. Following submissions by the parties, including the submission of an affidavit from Brafmant, on August 1, 2003, the Supreme Court, New York County, denied the § 440.10 claim on the merits. On September 16, 2003, Ruine's application for permission to appeal was denied by the Appellate Division, First Department.

On September 30, 2003, Ruine filed a motion with this Court to vacate the stay on his habeas petition and reopen the case, which motion was granted on October 29, 2003. On November 18, 2003, Ruine submitted a supplement to his habeas petition, in which he elaborated on the bases for his claim of ineffective assistance of counsel contained in his amended petition and added a claim that trial counsel was ineffective by failing to request that the trial court charge lesser included offenses.

The State filed its answer to Ruine's petition and to his supplement to the petition on January 26, 2004, and on February 26, 2004, Ruine moved to file a reply to the State's answer. The motion being granted, Ruine filed a reply on March 15, 2004, at which time the matter was marked submitted. In the interim, on March 10, 2004, Ruine brought various applications for discovery, expansion of the record and an evidentiary hearing, which applications were disposed of by an opinion and order of this Court on this same day. Ruine v. Walsh, No. 00 Civ. 3798 (RWS).

The Standard For Relief

Section 2254 of Title 28, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), provides a federal remedy for state prisoners if their continued custody is in violation of federal law. 28 U.S.C. § 2254(a); see Chandler v. Florida, 449 U.S. 560, 571 (1981) ("This Court has no supervisory authority over state courts, and, in reviewing a state court judgment, we are confined to evaluating it in relation to the Federal Constitution"). As Ruine filed for habeas corpus relief after April 26, 1996, certain provisions of the AEDPA are applicable here. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402 (2000); Hemstreet v. Greiner, 367 F.3d 135, 139 (2d Cir. 2004). These provisions, codified at 28 U.S.C. § 2254(d), specify that:

An 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 with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

According to the U.S. Supreme Court, these provisions, introduced by the 1996 amendment, have imposed a "new constraint" on courts reviewing habeas corpus petitions regarding claims that were reached on the merits by the state court. Williams, 529 U.S. at 412. In addressing 28 U.S.C. § 2254(d)(1), the Court has explained that under the "contrary to" clause, a habeas court "may grant the writ if the state court arrives at a conclusion opposite to that reached by this 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, 529 U.S. at 412-13; see also Harris v. Kuhlmann, 346 F.3d 330, 344 (2d Cir. 2003). In commenting on the "unreasonable application" clause, the Court has stressed that "unreasonable" does not mean "incorrect" or "erroneous." Williams, 529 U.S. at 410-11. Thus, a writ may only issue under this latter clause "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;see also Hemstreet, 367 F.3d at 139. The Second Circuit has interpreted the 1996 amendment as requiring denial of a habeas corpus petition, even in cases where the state court is incorrect, so long as the state court has not been unreasonable.See Jones v. Stinson, 229 F.3d 112, 119-21 (2d Cir. 2000). Petitioners bear the burden of proving violations of federal law by a preponderance of the evidence. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).

If the dispute involves a purely factual question, 28 U.S.C. § 2254(d)(2) governs, and a federal court can grant a habeas corpus application only if the state court's decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997) (quoting 28 U.S.C. § 2254(d)(2));see also Channer v. Brooks, 320 F.3d 188, 195 (2d Cir. 2003). A state court's determination of a factual issue is "presumed to be correct" and the petitioner can rebut the presumption only by "clear and convincing evidence." 28 U.S.C. § 2254(e)(1).

In addition to imposing a more deferential standard of review, the 1996 amendment restricts courts when reviewing habeas claims to the case law of the United States Supreme Court. Williams, 529 U.S. at 412-13; Delvalle v. Armstrong, 306 F.3d 1197 (2d Cir. 2002). Accordingly, the courts evaluating a habeas petition should survey the legal landscape at the time the state court adjudicated the petitioner's claim to determine the applicable U.S. Supreme Court authority, as federal law is "clearly established" only if the Supreme Court precedent in existence at the time of the state court's decision would have compelled a particular result in the case. See Williams, 529 U.S. at 412 (The phrase "`clearly established Federal law' . . . refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision."); accord Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003); see generally 28 U.S.C. § 2254(d) (limiting habeas relief to any claim that "was adjudicated" on the merits in state court unless that decision was inconsistent with "clearly established Federal law, as determined by the Supreme Court"). Errors of state law are not cognizable on federal habeas review. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991); Wainwright v. Sykes, 433 U.S. 72, 81 (1977).

I. Ruine Has Exhausted His Claims in State Court

Before a federal court may address the merits of a § 2254 claim, state prisoners must exhaust their claims by pursuing them in the state court system until no further avenue of relief is available there. 28 U.S.C. § 2254(b), (c); see Keeney v. Tamayo Reyes, 504 U.S. 1, 9-10 (1992) (reaffirming that a state prisoner must exhaust state remedies before a writ of habeas corpus may be granted by a federal court); Rose v. Lundy, 455 U.S. 509 (1982). Ruine has exhausted the claims raised in his amended petition and supplement, and this Court may therefore proceed to address them on the merits.¹ II. The Trial Court's Exclusion of Walker's Prior Bad Acts Did Not Deprive Ruine of his Constitutional Right to Present a Complete Defense

1 Ruine raises several new ineffectiveness claims in his reply papers relating to Guillermo Cruz and Mitch Kahn. As these claims were not raised in either Ruine's amended petition or his supplement to that petition, they will not be addressed here.

Ruine argues that the trial court's decision to exclude evidence of Walker's prior history of cocaine use and prior use of box cutters in violent offenses deprived Ruine of his constitutional right to present a complete defense. Ruine contends that he was constitutionally entitled to use reliable evidence to rebut the prosecution's evidence that Ruine, rather than Walker, was the aggressor and to show that it was Walker, not Ruine, who initiated use of a dangerous weapon. Ruine concedes that he possessed no knowledge of Walker's prior acts at the time of their encounter.

The trial judge presiding over Ruine's trial, the Honorable Herbert Altman, had already passed on the issue of whether Walker's prior bad acts were relevant to the issue of justification in resolving Ruine's motion to dismiss the indictment, observing that,

The victim was a stranger to defendant at the time of the incident, and the former's prior violent or criminal acts could, thus, not have influenced defendant's belief as to the necessity of using physical force to defend himself. I decline to accept the far-fetched theory that when defendant saw the deceased, his years of experience encountering criminals during his career as a New York City police officer made him "instantly aware" via something akin to a sixth sense that the man confronting him had committed violent acts in the past. The contention that introduction of the deceased's criminal record was required because it would have "proved" to the grand jury that defendant had a "totally accurate perception of just how dangerous a person" [Walker] was is a specious and circular argument.

(R00513.) The trial court later adhered to this position in rejecting Ruine's pretrial request to admit the same proof (see R00539) and again in rejecting Ruine's renewed request asserted immediately before the defense rested. (See R01762).

On direct appeal, the Appellate Division, First Department upheld the trial court's ruling, explaining that "the court properly precluded defendant from introducing evidence of the deceased's prior drug use and other bad acts in order to establish his justification defense since the two men were strangers prior to the incident and there was no indication that defendant had any knowledge of these acts." Ruine, 258 A.D.2d at 279, 685 N.Y.S.2d at 49 (internal citation omitted).

Ruine asserts that it is clearly established federal law that "[t]he right of an accused in a criminal trial to due process is . . . the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294 (1973); see also Crane v. Kentucky, 476 U.S. 683, 690-91 (1986). He argues that a defendant's "basic right to have the prosecutor's case encounter and survive the crucible of meaningful adversarial testing" is violated when, "in the absence of any valid state justification," a state evidentiary rule or ruling excludes competent, reliable evidence bearing materially on the defendant's defense. Crane, 476 U.S. at 690-91 (internal quotation marks omitted). He further contends that, by excluding the evidence in question under an overly broad application of the New York rule that a defendant may not introduce evidence of a deceased victim's prior bad acts of violence unless the defendant had prior knowledge of those acts — even when Ruine was offering the evidence to prove facts other than his state of mind — the trial court committed an egregiously erroneous evidentiary ruling. Specifically, in Ruine's view, the "rational and logical basis for a rule that removes all discretion to admit the evidence no longer is rational and logical when the evidence is offered, as here, to prove other crucial facts, such as [Walker's] intent and identity as the initiator of armed violence and the first combatant to resort to the use of a weapon, the truthfulness of [Ruine's] account and the reasonableness of his perceptions of danger, and the reasonableness of the amount of defensive force used." (Amended Petition at 38-39.) Ruine argues, in the alternative, that either the New York rule requiring the exclusion of evidence of the type at issue here is unconstitutional or, if it may be interpreted to allow the admission of the evidence in question, is valid but was misapplied by the state court.

"[F]ederal habeas corpus relief does not lie for errors of state law." Estelle v. McGuire, 502 U.S. 62, 68 (1991) (internal quotation marks omitted). Moreover, as a general rule, "rulings by the state trial court on evidentiary questions are a matter of state law and pose no constitutional issue. . . ."Ayala v. Leonardo, 20 F.3d 83, 91 (2d Cir. 1994). As this Court had occasion to note in Abreu v. Kuhlman, No. 99 Civ. 9726 (RWS), 2000 WL 1773476 (S.D.N.Y. Dec. 4, 2000):

A habeas court may review a state court's allegedly erroneous evidentiary ruling only if it was so egregious that it rendered the petitioner's trial fundamentally unfair in violation of due process. See Chambers v. Mississippi, 410 U.S. 284, 302-03, (1973); Taylor v. Curry, 708 F.2d 886, 891 (2d Cir.), cert. denied, 464 U.S. 1000 (1983). An erroneous evidentiary ruling renders a trial fundamentally unfair only if the ruling was "material," in essence if in light of the evidence as a whole, a contrary ruling would have left reasonable doubt as to the guilt of the accused. See Johnson v. Ross, 955 F.2d 178, 181 (2d Cir. 1992); Taylor, 708 F.2d at 891. In order to prevail on such a claim, a petitioner must show a reasonable probability that the admission of the evidence affected the outcome of the trial. Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985).

Abreu, 2000 WL 1773476, at *5. Thus, it is only in the rare case in which an evidentiary error was so pervasive as to have denied the petitioner a fundamentally fair trial that a habeas court should intervene on due process grounds. See Estelle, 502 U.S. at 67-68; United States v. Agurs, 427 U.S. 97, 112-13 (1976).

It is an established rule of evidence under New York law that a victim's prior bad acts will not be admitted in cases where the defendant had not known of them before the incident. See People v. Miller, 39 N.Y.2d 543, 553, 384 N.Y.S.2d 741, 748, 349 N.E.2d 841, 848 (N.Y. 1976) (holding that the prior "rule precluding the admission of prior violent acts of victims in cases where a claim of justification is made should be changed to allow such evidence where it is shown that the defendant was actually aware of such particular acts at the time of the homicide or assault"); see also In re Robert S., 52 N.Y.2d 1046, 1047-48, 438 N.Y.S.2d 509, 511, 420 N.E.2d 390, 392 (N.Y. 1981) (explaining that Miller had modified the prior rule of total exclusion "only to the extent . . . of holding that a trial court in the exercise of its sound discretion might permit a defendant in a criminal case, where justification is an issue, to introduce evidence of the victim's prior specific acts of violence of which the defendant had knowledge, provided that the acts sought to be established are reasonably related to the crime of which the defendant stands charged, if accompanied by appropriate precautionary instructions") (internal quotation marks omitted). Evidence may be admitted in accordance with this evidentiary rule and in the exercise of the trial court's discretion unless "the emphasis on the particular acts of the victim as tending to show a general propensity for violence" is merely an "attempt to expand inferences drawn from previous instances of behavior into proof of the actual conduct of the defendant in the circumstances of the particular crime." In re Robert S., 52 N.Y.2d at 1047, 438 N.Y.S.2d at 511, 420 N.E.2d at 392. The state court's decision to exclude the evidence proffered by Ruine was manifestly in accordance with the Miller rule and the fact that Ruine may have sought to introduce the evidence for purposes unrelated to his state of mind is of no moment.

Nor does Ruine's argument that the Miller rule is unconstitutional hold water. The right to present a defense "does not give criminal defendants carte blanche to circumvent the rules of evidence. Restrictions on a defendant's presentation of evidence are constitutional if they serve `legitimate interests in the criminal trial process,' . . . and are not `arbitrary or disproportionate to the purposes they are designed to serve.'"United States v. Almonte, 956 F.2d 27, 30 (2d Cir. 1992) (quoting Rock v. Arkansas, 483 U.S. 44, 55 (1987)). See also Michigan v. Lucas, 500 U.S. 145, 150-53 (1991); Taylor v. Illinois, 484 U.S. 400, 414-16 (1988); Williams v. Lord, 996 F.2d 1481, 1483 (2d Cir. 1993); Buie v. Sullivan, 923 F.2d 10, 11 (2d Cir. 1990). The Second Circuit has already concluded that the Miller rule is constitutional, applying the analysis of Rock v. Arkansas under circumstances similar to those presented here. See Williams v. Lord, 996 F.2d 1481, 1483-84 (2d Cir. 1993) (noting that the Miller rule serves two legitimate state interests, that the balance drawn by New York in excluding evidence of a victim's prior bad acts "is neither arbitrary nor disproportionate," and that, accordingly, the petitioner had not been denied her constitutional right to present a defense).

In Williams, the petitioner claimed that the trial court's exclusion of evidence concerning the victim's prior violent act had violated her constitutional right to present a defense. The Second Circuit affirmed the district court's dismissal of the habeas petition, finding that the rule articulated by Miller and its progeny was constitutional, and also finding that the proffered evidence's "limited relevance" justified its exclusion:

Moreover, this evidence has little probative value. It does not bear on the reasonableness of Williams' actions, because she did not know Bennett [the victim] was a suspect in a prior rape. Nor were the attacks on Williams and Doe similar enough to constitute evidence of a modus operandi on Bennett's part. Therefore, the evidence is only relevant to Bennett's general propensity for violence. Under New York law, however, propensity evidence is viewed as having limited relevance. "[T]he commission of an independent offense is not proof in itself of the commission of another crime."

Williams, 996 F.2d at 1484 (quoting People v. Molineaux, 168 N.Y. 264, 293, 61 N.E. 286, 294 (N.Y. 1901)).

Even assuming, arguendo, that the state court's evidentiary ruling was erroneous, Ruine's proffered evidence, like that at issue in Williams, is of limited relevance and its exclusion by the trial court is not an error so egregious as to render Ruine's trial fundamentally unfair. Ruine, like the petitioner inWilliams, argues that the victim's prior acts demonstrate amodus operandi that is relevant to the victim's role in the incident that led to his death. Ruine has not established, however, that Walker's prior brandishing of a box cutter in two separate incidents, both years prior to his death, makes his use of such a weapon a modus operandi nor has he shown that those incidents are significantly similar to the encounter between Walker and Ruine, where there was no evidence to show that Walker had displayed a box cutter. Contrary to Ruine's strong insistence that the evidence was "crucial to demonstrate that Ruine's account was truthful [and] that Walker was the aggressor" (Amended Petition at 40), the proffer of evidence of Walker's prior bad acts amounts to little more than a proffer of propensity evidence, offered in an "attempt to expand inferences drawn from previous instances of behavior into proof of the actual conduct of the defendant in the circumstances of the particular crime." In re Robert S., 52 N.Y.2d at 1047, 438 N.Y.S.2d at 511, 420 N.E.2d at 392. Where evidence of prior bad acts would have served such an "improper purpose," the "failure to admit this evidence does not rise to the level of a federal constitutional error." Abreu, 2000 WL 1773476, at *8. (dismissing petitioner's claim regarding the exclusion of evidence of prior bad acts "[b]ecause the trial court acted within its discretion in disallowing this evidence, because the ruling did not violate clearly established Supreme Court precedent, and because [Petitioner] has not shown that introduction of this evidence would have changed the outcome of the trial").²

2 An example of an egregiously erroneous evidentiary ruling was given in Chambers v. Mississippi, 410 U.S. 284 (1973), where the state court had refused to admit three hearsay statements in which the declarant confessed to the murder with which the defendant had been charged. The Supreme Court stated that "in these circumstances, where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice." Chambers, 410 U.S. at 302. The other cases relied upon by Ruine contain similar examples of exceptions to the general rule that erroneous evidentiary rulings do not implicate federal law. In Crane v. Kentucky, 476 U.S. 683, 690-691 (1986), for instance, the Supreme Court considered a trial court's refusal to allow evidence of the circumstances of the defendant's confession. In holding the trial court's evidentiary ruling to be erroneous, the Court stated that "evidence about the manner in which a confession was obtained is often highly relevant to its reliability and credibility."Crane, 476 U.S. at 691. The evidence Ruine sought to introduce at trial is not analogous to the highly exculpatory evidence at issue in Chambers and Crane nor has Ruine established the reasonable probability that admission of the evidence in question would have affected the outcome of the case.

Accordingly, the exclusion of Walker's prior bad acts, even if an error, was not an error so egregious that it rendered Ruine's trial fundamentally unfair in violation of due process nor is there a reasonable probability that the admission of the evidence would have affected the outcome of the trial, particularly considering the record as a whole and the fact that a box cutter found in the victim's pocket and evidence of a breakdown byproduct of cocaine in Walker's system at the time of his death were admitted at trial. In any case, even if such a probability existed, Ruine has not shown that the excluded evidence "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Jones, 229 F.3d at 120.

III. Ruine Was Not Deprived of a Fair Trial by the Trial Court's Supplementary Instruction to the Jury or by Its Denial of Ruine's Request to Reopen the Evidence

Ruine argues that, by replying to the jury's question concerning whether they could consider Ruine's failure to call his wife as a witness, the trial court reneged on its earlier assurance that no missing witness instruction would be given and therefore deprived him of a fair trial. He also argues that the trial court's denial of Ruine's request to reopen the evidence during jury deliberations further deprived him of a fair trial. Ruine claims that the decision of the Appellate Division, First Department, rejecting Ruine's due process claims was based on unreasonable determinations of facts in light of the evidence in the record and represented an unreasonable application of clearly established federal law.

As Ruine's trial was drawing to its end, the prosecutor asked the trial court to deliver a missing witness charge as to Mrs. Ruine. When a party "has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do so creates the presumption that the testimony, if produced, would be unfavorable." People v. Gonzalez, 68 N.Y.2d 424, 427 (1986) (quoting Graves v. United States, 150 U.S. 118, 121 (1893)). The court ruled that it would not give the People a formal adverse inference charge but stated that the parties were free to comment on the issue in their summations (R02056; R02084-85.) In the summation, defense counsel did not address the missing witness issue directly but argued that Ruine had no burden to testify on his own behalf and bore no burden of calling witnesses. The prosecutor reminded the jurors several times that Ruine had not called his wife. He asked the jurors to conclude that Mrs. Ruine did not take the stand because her testimony "[would] not support the defense version of what took place." (R01919.) Defense counsel made a general objection and moved for a mistrial. The court overruled the objection.

In its final charge, the court did not instruct the jury on the missing witness inference. After commencing their deliberations, the jurors sent out four notes to the trial judge, one of which sought "an explanation from the judge on whether we can consider the fact that Mrs. Ruine did not testify on the stand?" (R02000.) Ruine's counsel asked Justice Altman to tell the jurors that "they can draw no inference one way or the other from that fact," first, because the record did not show she possessed material knowledge about the crime and, second, because the trial judge's refusal to give a formal missing witness charge had "great influence" on the "final decision" not to call Mrs. Ruine. (R02001.)

Justice Altman observed that, as a "technical matter," a missing witness charge had been appropriate and that his refusal to give the charge had been an act of generosity to petitioner. Justice Altman stated he would tell the jurors that they could give "such weight as they choose" to Ruine's failure to produce his wife. He then wrote out a proposed instruction for defense counsel to examine. (See R02002.) Defense counsel read the instruction and objected to its delivery. In particular, defense counsel noted that insofar as the trial court intended to mention concepts of witness "control" and to invite the jurors to consider the failure to call such a witness, the court was effectively delivering a missing witness instruction. Defense counsel proposed that the trial judge instruct the jurors "that they can give that fact any weight or not give it any weight, as they choose." (R02004.) When the jurors reconvened, the trial judge re-read their note asking whether they could consider Mrs. Ruine's absence, and he responded, "Yes, you may and you may give it such weight as you choose." (R02008.)

The next morning, defense counsel stated on the record that the court had committed "an error of fundamental fairness and due process," that the defense had "shaped [its] strategy" on the court's earlier indication that it would not deliver a missing witness charge and that the supplemental instruction carried the "imprimatur of the court." (R02017-02019.) Defense counsel then asked for permission either to reopen the defense summation or reopen the defense case to call Mrs. Ruine but was denied. Defense counsel thereafter moved for a mistrial which was denied as well.

On direct appeal, the Appellate Division, First Department, concluded that the trial court's conduct concerning the missing witness issue was proper, writing:

The [trial] court's rulings following a note from the deliberating jury were proper exercises of discretion. . . . When the deliberating jury inquired whether it could consider the fact that defendant's wife did not testify, the court was obligated to provide a response that was meaningful (CPL 310.30; People v. Almodovar, 62 N.Y.2d 126, 476 N.Y.S.2d 95, 464 N.E.2d 463 [(1984)]), given the People's summation, and the court appropriately instructed the jury that it could consider the absence of testimony from defendant's wife and give it such weight as the jury chose. By giving this neutral, innocuous response (see, People v. Rodriguez, 38 N.Y.2d 95, 378 N.Y.S.2d 665, 341 N.E.2d 231 [(1975)]), which said nothing about drawing inferences, the court did not, as defendant argues, renege on its promise not to give a missing witness charge.

Ruine, 258 A.D.2d at 278, 685 N.Y.S.2d at 48. The Appellate Division went on to note:

The [trial] court also properly exercised its discretion when it denied defendant's belated motion to reopen his case by calling his wife to the stand, or to reopen his summation (see, People v. Olsen, 34 N.Y.2d 349, 357 N.Y.S.2d 487, 313 N.E.2d 782 ([1974)]). Defendant had rested his case and delivered a summation with full knowledge that the People would be commenting in summation on the absence of testimony from defendant's wife. The events during deliberations did not change the situation to the extent that the extraordinary remedy (id.) of reopening testimony or summations in the midst of deliberations would be required. In any event, even if we were to find that the court's supplemental instruction or its denial of the application for reopening were error, we would find that such errors could not have affected the verdict.

Id., 258 A.D.2d at 278-79, 685 N.Y.S.2d at 48-49.

It is well established that, in determining a due process violation arising from a judge's jury instruction, "[a]ny alleged errors in a judge's jury instructions . . . are normally matters of state law and are immune from habeas review unless an error is so prejudicial so as to constitute a violation of due process.Ortiz v. Lefevre, No. 89 Civ. 6553 (ML), 1990 WL 100889, at *3 (S.D.N.Y. July 9, 1990); see Henderson v. Kibbe, 431 U.S. 145, 154 (1977); Cordoba v. Harris, 473 F. Supp 632, 634 n. 5 (S.D.N.Y.), aff'd, 614 F.2d 1286 (2d Cir. 1979). "The question in such a collateral proceeding is whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process, not merely whether the instruction is undesirable, erroneous, or even universally condemned." Henderson, 431 U.S. at 154. The petitioner's burden in this instance is "especially heavy because no erroneous instruction was given." Id., 431 U.S. at 155.

While the trial court in Ortiz had provided hypotheticals to the jury as part of the supplementary instruction, a disfavored procedure, the trial court in Ruine's case could not have provided a more correct or plainer statement of the law to the jury. For example, in a similar case in which the defendant chose not to call his wife to the stand when she was a material witness over whom he had control, it was held that the "supplementary charge, brief as it was, said little more than that the failure to call the wife was a matter the jury could `consider.' It was correct as far as it went. At worst, it was innocuous." People v. Rodriguez 38 N.Y.2d 95, 101-102, 378 N.Y.S.2d 665 (1975) (citations omitted).

Even if the instruction were erroneous, "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp v. Naughton, 414 U.S. 141, 147 (1973) (quoting Boyd v. United States, 271 U.S. 104, 107 (1926)). Here, the court's final instructions to the jury advised them that the People bore the exclusive burden of proof, that the burden of proof remained on the People throughout the trial, and that the burden never shifted to petitioner (R01965-1966). Justice Altman further advised them that Ruine was presumed innocent, that he had an absolute right not to testify, and that the jury was not permitted to draw any inference against petitioner for his failure to testify. (R01964-1965, R01968.)

Ruine also argues that the instruction given at his trial was a reneging of Justice Altman's promise not to give a missing witness charge and as such was a violation of the rule that the government may not, through misleading statements concerning the consequences of the accused's choices, entrap or burden the accused in the exercise of his constitutionally protected trial rights. Ruine cites Doyle v. Ohio, 426 U.S. 610, 618 (1976), in which the Supreme Court held that it was "fundamentally unfair" for the prosecutor to impeach a defendant with his post-Miranda silence, since the Miranda warnings contained an implicit assurance that such silence would carry no penalty. Another case,Raley v. Ohio, 360 U.S. 423 (1959), involved a ruling by the Supreme Court that it was an "indefensible sort of entrapment by the State" where the defendant was told he had a right to rely on the privilege against self-incrimination but was then held to have committed an offense in exercising it.

Ruine's claim that he made the decision not to call Mrs. Ruine in reliance on the trial judge's pledge not to give a missing witness charge is dependent upon a factual assertion which has already been determined by the state court. Section 2254 provides that a state court's determination of a factual issue is presumed correct; the petitioner has the burden of rebutting that presumption by "clear and convincing evidence." 28 U.S.C. § 2254 (e) (1); Leslie v. Artuz, 230 F.3d 25, 31 (2d Cir. 2000),cert. denied, 531 U.S. 1199 (2001). Where Ruine knew the prosecutor could comment on Mrs. Ruine's absence in his summation and where the jury foreseeably asked whether they could consider her absence, Ruine made a strategic choice not to call his wife with full knowledge of the potential consequences.

Further, the trial court did not renege on its promise not to give a missing witness charge as that charge is a specific charge which includes concepts of the defendant's control of the witness, availability of the witness and whether the witness might naturally be expected to offer favorable testimony. See, e.g., People v. Paylor 70 N.Y.2d 146, 149 (1987). Therefore, in instructing the jury that they could give the fact that Ruine's wife did not testify any weight they chose, the trial court did not renege on its promise not to give a missing witness charge and Ruine was not "entrapped."

IV. The Prosecutor's Summation Did Not Violate Ruine's Right to a Fair Trial

Ruine argues that the prosecutor's summation violated his right to a fair trial by urging the jury to draw adverse inferences from his wife's absence as a witness and improperly commenting on his absence as a witness in a manner which invited the jury to draw an adverse inference from his decision not to testify.

The Second Circuit has held that the distinction must be maintained "between ordinary trial error of a prosecutor and that sort of egregious misconduct [that] . . . amount[s] to a denial of constitutional due process," that is, misconduct which makes a defendant's trial "fundamentally unfair." Donnelly v. DeChristoforo, 416 U.S. 637, 645, 647-48 (1974).

"A constitutional violation occurs only if . . . the jury naturally and necessarily' would interpret the summation as a comment on the failure of the accused to testify." United States v. Bubar, 567 F. 2d 192, 199 (2d Cir. 1977) (quoting United States ex rel. Leak v. Follette, 418 F.2d 1266 (2d Cir. 1969),cert. denied, 397 U.S. 1050 (1970)). Ruine himself states that the comments made by the prosecutor were a "very, very subtle" comment on his failure to testify, far from warranting a "natural and necessary" interpretation of such by the jury. Pet.'s Rep. at 20.

The prosecutor argued in summation that Ruine's out-of-court statements to the police officer who had arrived at the scene were conclusory, self-serving, and tainted by his motive to lie, stating that "[t]he police officers didn't cross-examine [Ruine]" (R01920-1921). Ruine asserts that these comments could have been construed as references to his failure to testify and an impermissible shifting of the burden of proof. However, these statements were in response to the defense summation arguments which relied heavily on Ruine's out-of-court statements to the police officer, stating that Ruine's assertion of self-defense was "unrefuted" (R01779-1789, R01824, R01838) and suggested that he had proven his innocence by his "unrebutted" statement to the police officer that he was justified in killing Walker (R01838).United States v. Modica, 663 F.2d 1173, 1181 (2d Cir. 1981) ("Among the elements weighed . . . [is] the extent to which the statements were made in response to defense contentions").

The prosecutor also stated that Ruine had not called either "an independent witness" or "even someone who might have been biased toward petitioner," "for example, the wife, Cheryl Ruine" "who could tell you what had happened on that day" (R01861). The absence of Ruine's wife was something about which the prosecutor could fairly comment under both state and federal law. See Tankleff v. Senkowski, 135 F.3d 235, 251 (2d Cir. 1998);United States v. Yuzay, 55 F.3d 47, 53 (2d Cir. 1995) (once defendant has put on his case, prosecutor may fairly comment on defense failure to call witness to support his factual theory).See also United States v. Rosa, 11 F.3d 315, 342-43 (2d Cir. 1993).

Ruine also argues that in stating that Mrs. Ruine "was close enough to see what happened, to see if Perry Walker was going for a gun behind his back, if he was pulling out a box cutter, if he was threatening to kill, if he was approaching or retreating, if he had his hands up, if he was reaching behind his hands into his waistband" and that "the only conclusion [the jury] can reach with regard to why [Mrs. Ruine] didn't take the witness stand in this trial is that she did not support the defense version of what took place" (R 1918-1919), the prosecutor misled the jury by arguing facts which he knew to be untrue as he was also the Assistant District Attorney who was present two years earlier when Mrs. Ruine made a pre-indictment videotaped statement under oath that Perry Walker was "agitated and belligerent," "getting louder and louder, and he seemed very out of control, and I heard that" (R 2094), that she saw Perry Walker "reach with his right hand behind him. Behind his coat as if he had a — a gun" (R 2094) and that she screamed to her husband Paul that [she thought] Walker had a gun (R2094). Tankleff v. Senkowski, 135 F.3d 235 (2d Cir. 1998), held that the prosecutor's closing argument which remarked on the witness' failure to testify and argued that if she had testified it would have conflicted with the defendant's account, was improper where the prosecution was aware that the witness' prior sworn testimony at a pretrial suppression hearing corroborated the defendant's version. Applying the three-part test used in Modica, 663 F.2d at 1181, to find the existence of substantial prejudice, "the severity of the misconduct; the measures adopted to cure the misconduct; and the certainty of the conviction absent the improper statements," the court in Tankleff found that the petitioner had not been substantially prejudiced. The prosecutor's comments had been "short and fleeting." The court contrasted the case with Floyd v. Meachum, 907 F.2d 347 (2d Cir. 1990), in which the prosecutor referred to the defendant as a liar 40 times in her opening and closing arguments, stated that the Fifth Amendment and proof beyond a reasonable doubt is a protection for the innocent and not for the guilty, and asked the jury to pass on her own personal ethics and integrity before deliberating on the evidence. The court in Floyd emphasized that the cumulative effect of the three categories of improper remarks denied the petitioner a fundamentally fair trial and that it was "one of those rare cases where the improper comments in a prosecutor's summation were so numerous and, in combination, so prejudicial that a new trial is required." Id. at 348.

However, even if these comments were inappropriate, "inappropriate prosecutorial comments, standing alone, [do] not justify a reviewing court to reverse a criminal trial obtained in an otherwise fair proceeding." United States v. Young, 470 U.S. 1, 11-12 (1985). Here, as in the similar case of Tankleff, the second Modica factor of the measures adopted to cure the misconduct were sufficient to cure any harm the prosecutor's misstatements may have caused. As stated above, the court's final instructions to the jury advised them that the People bore the exclusive burden of proof, that the burden of proof remained on the People throughout the trial, and that the burden never shifted to petitioner (R01965-1966). He further advised them that Ruine was presumed innocent, that he had an absolute right not to testify, and that the jury was not permitted to draw any inference against petitioner for his failure to testify (R01964-1965, R01968).

Finally, this is not a case in which the evidence was so closely balanced that the prosecutor's comments were likely to have had a substantial effect on the jury. United States v. Saa, 859 F.2d 1067, 1077 (2d Cir. 1988) ("[B]ased on the other evidence against [the defendants], we find . . . that any adverse inference improperly drawn by the jury would not have tilted the scales from not guilty to guilty."). As the court stated inTankleff, the witness' failure to appear "was bound to be a source of some interest to the jurors regardless of the prosecutor's comments." 135 F.3d at 253. Under these circumstances, this is not a case of egregious misconduct that amounts to a denial of constitutional due process.

Nor did the trial court's refusal to reopen the evidence deprive Ruine of his due process rights. New evidence introduced during the jury's deliberations is likely to be given "undue emphasis." Eason v. United States, 281 F.2d 818, 822 (9th Cir. 1960). "These considerations are generally outweighed only by a clear showing that essential evidence bearing directly on the defendant's guilt has come to light, which despite all due diligence was not available at the time of trial." People v. Olsen, 34 N.Y.2d 349, 355 (1974). United States v. Aiken, 373 F.2d 294, 300 (2d Cir.) cert. denied, 389 U.S. 833 (1967) (holding that the denial of a motion to reopen a case due to the location of a witness who would testify that the defendant had been framed, even before summations, was not an abuse of discretion).

Considering that the trial judge had informed the parties that they were permitted to address the issue of Mrs. Ruine's failure to testify during summations, it should not have been a surprise to Ruine's counsel that the prosecutor would do so, that the jury might inquire as to whether they could consider that fact and that the judge would be obliged to give them an answer. This is not a case of essential evidence bearing directly on Ruine's guilt which was not available at the time of trial. In addition, Ruine did not seek to reopen his case at the time the court's response was given to the jury but rather took the remainder of the day and the overnight recess, seeking only the following morning to request the reopening of evidence. United States v. Bayer, 331 U.S. 532, 538 ("The evidence, if put in after four hours of deliberation by the jury, would likely be of distorted importance"). Therefore, Ruine was not deprived of his due process rights by the trial court's refusal to reopen the evidence.

V. Ruine Has Not Established that His Counsel Was Constitutionally Ineffective

Ruine argues that Brafman's conduct fell outside the range of professionally competent assistance insofar as he pledged to the jurors in his opening statement that Ruine and his wife would testify, then convinced Ruine that his testimony was not necessary, misled Ruine into agreeing not to call Mrs. Ruine as a witness, and failed to inform Ruine that the trial court had ruled that the parties would be permitted to comment on her absence in summation.

"In a petition for habeas relief alleging ineffective counsel, the question as to whether the matter is governed by existing Supreme Court precedent `is easily answered because the merits of [such] claim[s] are squarely governed by [the Supreme Court's] holding in Strickland v. Washington.'" Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001) (quoting Williams v. Taylor, 529 U.S. 362, 390 (2000)); see also Hemstreet v. Greiner, 367 F.3d 135, 139 (2d Cir. 2004).

In Strickland, the Supreme Court established a two-prong test to determine whether a petitioner received assistance from counsel "so defective as to require reversal of a conviction."Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the [petitioner] must show that counsel's performance was deficient . . . Second, the [petitioner] must show that the deficient performance prejudiced the defense." Id.

To establish that counsel's performance was deficient, the court must determine "whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id. at 690. In other words, to show deficient performance, a petitioner must show "that counsel's representation fell below an objective standard of reasonableness." Id. at 688. The strong presumption of counsel's effectiveness may be overcome by demonstrating that defense counsel was not reasonably competent. Id. at 689-90. However, such a showing is not easily made, as the Supreme Court has directed that "judicial scrutiny of counsel's performance must be highly deferential . . . [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Id. at 689. In addition,

It will generally be appropriate for a reviewing court to assess counsel's overall performance throughout the case in order to determine whether the "identified acts or omissions" overcome the presumption that a counsel rendered reasonable professional assistance. Since "[t]here are countless ways to provide effective assistance in any given case," unless consideration is given to counsel's overall performance, before and at trial, it will be "all too easy for a court, examining counsel's defense after it has proven unsuccessful, to conclude that a particular act or omission of counsel was unreasonable."

Kimmelman v. Morrison, 477 U.S. 365, 386 (1986) (internal citations omitted) (quoting Strickland, 466 U.S. at 689). Thus, there exists "`a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance,' which forces the [petitioner] to `overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.'" Erze v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (quoting Strickland, 466 U.S. at 689). Finally, every effort must 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." Strickland, 466 U.S. at 689.

If counsel's performance is found to have fallen "outside the wide range of professionally competent assistance," then the petitioner must next establish prejudice by showing that counsel's acts and omissions "actually had an adverse effect on the defense" such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.

If a petitioner demonstrates that counsel was ineffective and that counsel's representation prejudiced the defense, the petitioner must still satisfy 28 U.S.C. § 2254(d) before a writ of habeas corpus may issue. As an ineffective assistance claim is "a mixed question of law and fact," Strickland, 466 U.S. at 698, it shall be evaluated under the deferential standard set forth in 28 U.S.C. § 2254(d) (1). See Overton v. Newton, 295 F.3d 270, 277 (2d Cir. 2002) (explaining that mixed questions of law and fact evaluated on a petition for habeas corpus "are subject to the standard set forth in 28 U.S.C. § 2254(d) (1)"). "To determine that the state court applied Strickland in an unreasonable manner [under 28 U.S.C. § 2254(d) (1)], we cannot simply conclude that the court's application was erroneous; rather, we must find that there was some increment beyond error.'" Hemstreet, 367 F.3d at 139 (quoting Eze v. Senkowski, 321 F.3d 110, 124-25 (2d Cir. 2003).

Defense Counsel's Opening Statement

Ruine argues that his trial counsel's assistance was ineffective because promises made during defense counsel's opening arguments to the effect that Ruine and his wife would testify were subsequently broken when Brafman failed to call either Ruine or his wife to the stand. Ruine points to eleven instances in Brafman's opening statement when, according to Ruine, Brafman promised the jury that either Ruine or his wife would testify:

1. . . . And no second guessing after the fact by a person who was not a witness will change the facts that you will hear about in this courtroom. (R00588.)

2. . . . And what Mr. Walker said to Mr. Ruine, the evidence will show, is that he was going to kill him, "I am going to end your life, you are going to die." (R00588.)

3. . . . But no witness brought to you by the People will tell you that they understood what was happening, that they knew what prompted the encounter, that they heard what Mr. Walker in his rage was screaming at the defendant and his wife and when you finish this trial you will conclude that it is easy to second guess, but frightening to be there at that moment in time and under the law, you will conclude, Mr. Ruine was justified. . . . (R00590.)

4. . . . The evidence in this case will demonstrate that the reason Mr. Ruine said to the operator the location of the would is because when EMS is dispatched, it is important that they know if in fact there is a back injury because moving someone with a back injury can permanently disable them, permanently paralyze them. [Mr. Schiels: Objection, argument.] [The Court: Sustained.] Your honor, this is testimony that will be offered by the defendant. (R00598.)

5. . . . Ladies and Gentleman, you will learn that on the afternoon of January 6, 1996, Mr. Ruine and his wife Sheryl were proceeding up Eighth Avenue where they were going to stop at the corner of the Korean Deli for firewood. (R00599.)

6. . . . You will conclude that Mr. Ruine was not out looking for mischief. . . . that at the Korean Deli Mr. Ruine double parked with the intent as he will explain to go into the deli, leaving his wife in the car, get the firewood and then go home because they lived just around the corner. (R00599-600.)

7. . . . [Walker's] face was contorted in rage. Mr. Ruine, you will conclude, was seated in the van at the time and that the angle of the van was, it was double parked, and the angle of where Mr. Walker parked himself in the street and the body motions that Mr. Walker took suggested to Mr. Ruine, who was a retired police officer, that this man was about to kill them because he said so and these actions were consistent, Mr. Ruine will tell you, with someone reaching for a weapon. (R00600.)

8. . . . But, please keep in mind, that what the People's witnesses did not hear and what you will hear testimony about, is that Mr. Walker, among other things, told Mr. Ruine you are going to die. (R00600-01.)

9. . . . Mr. Ruine's wife Sheryl Ruine, who you will meet, who is a financial advisor, a law-abiding citizen, a very intelligent responsible woman, began screaming hysterically in the case, in Paul Ruine's ear, he got a gun, he got a gun. (R00601.)

10. . . . But what you have to decide, what this case is about, is in that moment of fear, in that second of terror, with his hysterical wife screaming he's got a gun, with all of his experience as a police officer for 15 years in the streets of New York, telling him that this was not an idle threat, that when this man said you are going to die, Mr. Ruine had a reasonable basis to fear that he was in fact going to die and that he then shot Perry Walker and that at one point he actually closed his eyes because he was absolutely terrified that there was going to be return fire. . . . (R00602-03.)

11. . . . But one thing I promise you that the evidence will show. No witness called by the district attorney in this case will be able to tell you from beginning to end what happened. Why it happened. Who did what. (R00604.)

Ruine further argues that, at Brafman's request, the trial court instructed the jury as to why Mrs. Ruine was not present at the trial: "In case you were wondering, members of the jury, why Mrs. Ruine is not sitting in the spectator section, it is because it is anticipated that she will be a witness at the trial. Witnesses aren't permitted to be present during testimony of other witnesses." (R00742.) Finally, Ruine contends that Brafman's silence during summation with regard to his failure to call either Ruine or Mrs. Ruine compounded his ineffectiveness.

State Court Findings

The state court considered Ruine's arguments at length and concluded that defense counsel was effective. Acknowledging that defense counsel "several times explicitly stated in his opening that the defendant would explain or tell the jurors about certain aspects of the incident and also told them that they would `meet' Mrs. Ruine," (Resp. Appendix, Exh. G., at 8), the state court proceeded to explain how,

On the Sunday preceding the last week of trial, the attorney persuaded his client not to testify. The next day I reversed an earlier ruling and permitted the defense to call an expert witness to testify. . . . At this point, trial counsel was convinced that there was enough evidence for the jury to conclude that Mr. Walker had been enraged when he confronted the defendant. Consequently, he no longer believed that it was necessary for such testimony to come from defendant's wife. Additionally, I informed the parties that I would not instruct the jury that they could draw a negative inference from the failure of the defense to call her, although I would permit the prosecutor to make such an argument in his summation. Trial counsel then persuaded the defendant that, given these rulings, it would be counterproductive for his wife to testify and the next morning he informed me that she would not be called.

(Id. at 9.) The state court also noted that documentary evidence appended to the motion papers indicated that Brafman assumed up until the final days of the trial that both Ruine and Mrs. Ruine would testify. (See id. at 8.)

In the state court's estimation, "[t]here were sound strategic reasons for the defendant and his wife not to testify." (Id. at 11.) Specifically,

There was reason to believe that the defense had already introduced reasonable doubt into the case with regard to intent and justification through cross examination of the People's witnesses and the calling of several expert witnesses and that the testimony of the defendant and his wife would thus be superfluous. Although they might strengthen defendant's self-defense claim if they testified and presented well both on direct and cross-examination, that possibility had to be balanced against the greater probability that by testifying they would undermine the entire case. Trial counsel believed that calling either his client or Mrs. Ruine were gambles not worth taking. Each of them had been interviewed by the prosecutor and later testified in the Grand Jury. The People were in a position to exploit their errors or misstatements. The danger was especially great as to Mrs. Ruine, whose Grand Jury testimony was unavailable to the defense. Moreover, the Grand Jury minutes reveal that the Ruines had, indeed, been poor witnesses.

(Id. at 11-12.) The state court went on to concur with trial counsel's view that Ruine's appearance as a witness would have been an "`unmitigated disaster'" based on his appearance before the grand jury and that "Mrs. Ruine's testimony was no better." (Id. at 12, 13.) Trial counsel was not present when Mrs. Ruine appeared before the grand jury "but had seen how poorly . . . she had presented when she had been interviewed by the assistant district attorney." (Id. at 13.) Indeed, the state court commented,

[I]f her Grand Jury testimony is any guide, trial counsel's fear that having her testify would have as likely hurt as helped the defense case was completely justified. If nothing else, there was a substantial risk that the jury would believe that she was lying to protect her husband. He also considered the possibility that, if she testified and he [Ruine] did not, the jury might believe that he had something to hide. Neither was trial counsel comfortable with the prospect of the defendant testifying. He had twice seen his client being questioned and knew that he had shown himself to be volatile and easily provoked. Exposing him to cross-examination at the hands of a skilled prosecutor might showcase those aspects of his character. In a murder case resting on a justification defense, that would be disastrous. There were therefore compelling reasons not to call either of them.

(Id. at 13-14.)

In light of Ruine's trial counsel's strong concerns about Ruine's appearance before the grand jury, the state court agreed with Ruine that "there was nothing to be gained from trial counsel's informing the jury in his opening that it would hear from the defendant. Making this promise in the opening was clearly a mistake." (Id. at 14.) Nevertheless, the state court concluded that "in context this error was understandable. At the time trial counsel believed that he would never overcome his client's insistence that he and his wife explain to the jury what happened in their own words." (Id.)

"More important, the attorney's statements did not amount to ineffectiveness of counsel because they did not ultimately prejudice the defendant," explained the state court. (Id.) The state court concluded that it was likely that, despite the promises made by defense counsel to the jury to the effect that Ruine would testify, the jury did not hold the broken promise against him:

Not only was the jury instructed, as provided by CPL 300.10, that it could draw no negative inference from defendant's failure to testify, but it later sent out a note asking whether it could consider the fact that Mrs. Ruine had not testified. Had the jurors not taken seriously my instruction they would certainly have had no qualms about holding his wife's failure to testify against the defense. The fact that they asked only whether they could consider the absence of her testimony indicates that they were aware that his silence could not be held against him and were unsure whether it was proper for them to apply the same rule as to the lack of testimony from her. The lack of testimony from the defendant therefore does not appear to have prejudiced the jury.

(Id.) The state court also noted that in the course of defense counsel's summation, he "inventively wove together the defense version of the events by referring to and quoting the statements defendant had made to the police after the incident and by playing the 911 tape in which he had reported the shooting and asked for an ambulance. In so doing [Brafman] substantially succeeded in making it appear that the jury had heard what had happened from defendant himself." (Id. at 17.)

As for Mrs. Ruine's failure to testify, the state court explained that Brafman had not told jurors that she would testify, but only that they would "meet" her. "They had, in fact, met her. Earlier in the trial, he had asked her to approach the well of the courtroom and model a jacket that the defense contended she had worn during the incident but which the People alleged had been worn by the defendant. The promise to the jury had therefore been fulfilled." (Id. at 18.) Moreover, according to the state court:

The possibility that the jury might draw a negative [inference] from Mrs. Ruine's failure to testify did not stem from the fact that trial counsel had told the jury that it would meet her. . . . The risk . . . was, rather, inherent in the structure of the case. The jury knew that she had been at defendant's side in the car during the shooting and had witnessed the entire incident. Had trial counsel said nothing about Mrs. Ruine in his opening, the People would nonetheless have been able to capitalize upon the decision by the defense not to call her. Thus, although trial counsel gained nothing in promising the jury that it would meet Mrs. Ruine, his promise did not hurt the defense case, as it [the jury] had in fact "met" her and, in any event, did not prejudice the defense (see Strickland v. Washington supra).

(Id. at 18-19.)

The state court concluded that defense counsel's silence on summation as to the absence of testimony from either Ruine or his wife was a "defensible strategic choice" (id. at 19) and that, "[a]lthough there was little, if any, justification for telling the jury that it would meet Mrs. Ruine and hear from her husband, and in retrospect, the promises should not have been made, they did not affect the trial." (Id. at 20).

Federal Law Analysis

Ruine argues that the state court's conclusions were contrary to and predicated on an unreasonable application of both the facts and federal law. See 28 U.S.C. § 2254 (d)(1) (providing that a writ shall not issue unless the state court's adjudication of the merits of a claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law").³

3 Even if Ruine's purely factual contentions were assessed under the rubric of 28 U.S.C. § 2254 (d)(2) they would not succeed. Ruine argues that the state court unreasonably determined that the jury had met Mrs. Ruine when she modeled a jacket in the courtroom and that, consequently, Brafman's promise made during his opening remarks was satisfied. He further argues that the state court unreasonably concluded that Mrs. Ruine's grand jury testimony "reads as a performance by a poor actress" and that, although defense counsel was not present when she testified before the grand jury, Brafman nonetheless "had seen how poorly she had presented when she had been interviewed by the assistant district attorney." None of these factual determinations are, however, unreasonable in view of the record, nor has Ruine offered any evidence sufficient to rebut the presumption that the determinations are correct. See, e.g., Wilson v. Osmint, 352 F.3d 847, 860 (4th Cir. 2003) (concluding that facts that provide a sufficient basis for a state court's credibility determination, even if they do not compel such a determination, do not constitute factual determinations that are objectively unreasonable).

Ruine's argument under the first clause of 28 U.S.C. § 2254 (d) (1) may be disposed of expeditiously. A state court's decision is "contrary to" clearly established federal law when "the state court arrives at a conclusion opposite to that reached by [the U.S. 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, 529 U.S. 362, 412-13. Ruine has not established that the state court's decision was contrary to clearly established federal law. The standard used by the state court in assessing Ruine's claim of ineffective assistance of counsel was drawn, in part, from the standard articulated by the U.S. Supreme Court in Strickland v. Washington, and to the extent the state court relied on New York state standards, they are functionally equivalent to theStrickland standard.⁴ As the Second Circuit has recognized, the New York State standard for evaluating ineffective assistance claim is analogous in all relevant respects to the Strickland standard for purposes of federal constitutional analysis. See Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001); Lindstadt, 239 F.3d at 198. Moreover, the facts presented in this case are not materially indistinguishable from those involved in any Supreme Court cases, as counsel has not pointed to any Supreme Court ruling on a habeas claim involving an unfulfilled promise made in an opening statement to call certain witnesses.

4 The trial court held:

The constitutional requirement that a defendant be afforded effective assistance of counsel is met "so long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that the attorney provided meaningful representation" (People v. Baldi, 54 N.Y.2d 137, 147). An isolated error will constitute ineffective assistance of counsel only when it "is sufficiently egregious and prejudicial," i.e., so serious that the defendant did not receive a fair trial (Murray v. Carrier, 477 U.S. 478, 496). Even then, under the New York standard, the error must be viewed in the context of the entire representation (see People v. Flores, 84 N.Y.2d 184, 188). Under the Federal test enunciated in Strickland v. Washington, ( 466 U.S. 668), an individual must show that his attorney made errors "so serious that counsel was not functioning as the `counsel' guaranteed by the Sixth Amendment. The defendant must also demonstrate that the deficient performance prejudiced the defense" ( 466 U.S. at 687). In People v. Benevento, ( 91 N.Y.2d 708) the Court of Appeals reiterated a principle that had been enunciated in both Baldi (supra) and Strickland (supra) — that losing tactics were not to be confused with ineffective representation.

(Resp. Appendix, Exh. G., at 10-11).

What remains is to determine whether the state court unreasonably applied clearly established federal law in denying Ruine's ineffective assistance claim related to defense counsel's purported broken promises. Although neither counsel nor independent research has pointed to a Supreme Court case treating promises made during opening arguments akin to those at issue here that were later left unfulfilled, a number of federal courts have taken a position on the subject and provide guidance as to what constitutes reasonableness in such a circumstance. While these decisions do not make the legal principles they articulate "clearly established for the purposes of [§] 2254 (d) (1) because they do not issue from the Supreme Court, nonetheless, they provide significant insight into what constitutes reasonableness for a particular fact pattern." Phoenix v. Matesanz, 233 F.3d 77, 83 n. 3 (1st Cir. 2000) (internal citations omitted); see also Yancey v. Hall, 237 F. Supp. 2d 128, 133 (D. Mass. 2002) ("[T]o the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of a contested issue . . . [and] such reference is particularly appropriate in ineffective assistance of counsel cases, which are highly fact-specific.").

Strickland's Performance Prong

Cases which have not found ineffective assistance of counsel after a statement to the jury was not fulfilled encompass a wide range of factual circumstances. In McAleese v. Mazurkiewicz, 1 F.3d 159, 166-67 (3rd Cir. 1993), counsel promised the jury an alibi defense. The court found that counsel made no promise to produce a specific witness's testimony but used his opening statement as a recitation of evidence that would be, and was in fact, produced during the trial. The Eighth Circuit Court of Appeals did not find ineffectiveness in Williams v. Bowersox, 340 F.3d 667 (8th Cir. 2003), a case in which counsel informed the jury of specific witnesses that would be called. However, all witnesses mentioned by counsel were called by the state. Additionally, in United States v. Mittal, 2000 WL 1610799, at *4, 98 CR 1302 (S.D.N.Y. Oct. 27, 2000), counsel alluded to the existence of a different translation of government tape recordings but then failed to produce them due to translation difficulties. Holding that the defendant had not been prejudiced, the court stated,

The fact that trial counsel did not follow the exact letter of his opening statement does not mean that his representation fell below reasonable professional standards. Changing course from the roadmap outlined in opening statement as the trial progresses is not necessarily ineffective assistance. He did not withdraw crucial evidence without reason.

Id.

However, some federal courts evaluating a defense counsel's failure to fulfill a promise made in an opening statement to call a witness have concluded that such conduct amounts to ineffective assistance of counsel. In Ouber v. Guarino, 293 F.3d 19 (1st Cir. 2002), the First Circuit Court of Appeals held that defense counsel's decision to withhold the defendant's testimony after promising jurors during opening statement that they would hear it constituted ineffective assistance of counsel. The court emphasized the unique circumstances presented in Ouber, id. at 20, namely: that defense counsel had represented defendant twice before (both previous trials resulted in mistrials) and in each previous trial defendant had testified; and, that during defendant's third trial defense counsel introduced the testimony of twenty-four character witnesses who attested to defendant's reputation for veracity and thus set the stage for defendant's testimony by buttressing her credibility. Having thus laid an elaborate foundation for defendant's testimony only to withhold it subsequently, the court concluded, "in the absence of unforeseeable events forcing a change in strategy, the sequence constituted an error in professional judgment." Id. at 27.

Other courts in the First Circuit have come to the same conclusion. Anderson v. Butler, 858 F.2d 16 (1st Cir. 1988), dismissed the argument that counsel was keeping his options open in his opening statement by mentioning psychiatrists he intended to call to testify.

We might have no quarrel with counsel's decision to call, or not to call, as a strategic decision, had that matter stood alone . . . The choice was made in the posture of the jurors having heard, only the day before, that [doctors] would testify. . . . We cannot accept the approach that we should consider each matter separately — weighing counsel's choice on the second day as if there had been no opening. There was thrown into the scales the heavy inference the jurors would draw from the non-appearance of the doctors. In those circumstances it was a very bad decision, or, if it was still wise because of the damaging collateral evidence, it was inexcusable to have given the matter so little thought at the outset as to have made the opening promise.

Anderson, 858 F.2d at 18.

Brafman did not change his mind about the desirability of having his client testify mid-way through the trial, as did defense counsel in Ouber; nor did Brafman prime the jury to hear expert testimony that would be the linchpin of the defense, only to abandon such testimony entirely the very next day, as did defense counsel in Anderson. To the contrary, Brafman's change in course is more akin to a change in trial strategy in which a potential defense put forth in the opening statement is later abandoned. See Howard v. Davis, 815 F.2d 1429, 1432-33 (11th Cir. 1987) (holding that counsel was not ineffective for having originally elected to pursue an insanity defense but then deciding not to present the promised evidence when the insanity defense was abandoned).

Ruine changed his mind about testifying at trial, ultimately adhering to the advice Brafman had offered consistently. Throughout the course of his representation of Ruine, Brafman invariably counseled Ruine not to go on record himself — whether in front of the Assistant District Attorney pre-indictment, in front of the grand jury, or at trial. Instead, Ruine and his wife ignored defense counsel's strong recommendation, opting to speak on their own behalf with the Assistant District Attorney and in front of the grand jury, and both insisted on the same at trial, despite the detrimental effect generated on the two previous instances. Defense counsel presented his opening statement with the understanding that Ruine and his wife would demand to testify as they had previously in spite of his advice against it.

However, once trial began and Ruine observed Brafman's effective cross-examination of the People's case, Ruine began to second guess his demand to testify. Furthermore, once the trial court made a favorable evidentiary ruling permitting a defense expert's testimony that previously had been ruled inadmissible, the need for Mrs. Ruine's testimony, which would have laid the foundation for this expert's testimony, was eliminated. Given these evolving circumstances at trial and given that Mrs. Ruine was locked into her prior testimony, which did not comport fully with Ruine's defense, Mrs. Ruine also did not to testify. See United States v. McGill, 11 F.3d 223, 228 (1st Cir. 1993) (finding the decision not to call an easily impeachable witness, a firearms expert, a reasonable tactical decision when the testimony sought from the witness had already been introduced from another expert).

While defense counsel in Ouber and Anderson amended defense strategy for no discernible reason, Ouber, 293 F.3d at 27, or after having given insufficient thought to the proper strategy from the outset, Anderson, 858 F.2d at 18, Brafman's choice to advise Ruine and his wife not to testify was not an unreasoned position, a sudden change of heart, or a lingering afterthought that occurred to Brafman only once his opening statement had been made. Rather, Ruine's decision not to testify — and the decision to testify ultimately rests with the defendant, see Rock v. Arkansas, 483 U.S. 44, 49-53 (1987) — reflected the defendant's own change of heart, informed by defense counsel's continuing advise against testifying, the trial court's reversal of an earlier evidentiary ruling against defendant, defense counsel's effective cross-examination of prosecution witnesses, and the strength of three defense experts' testimony. Mrs. Ruine's decision not to testify similarly reflected sound trial strategy. As such, while Brafman's decision to signal in his opening statement potential testimony from the defendant and the opportunity to "meet" defendant's wife was unwise, Brafman's performance was not deficient under the first prong ofStrickland. Strickland's Prejudice Prong

Given this conclusion, it is unnecessary to determine whether Brafman's missteps prejudiced Ruine in his defense. The Court observes, however, that had Brafman's performance been deficient under Strickland, Ruine would still have to demonstrate actual prejudice, see Mickens v. Taylor, 535 U.S. 162 (2002), since prejudice can only be presumed in three narrowly defined circumstances. See Bell v. Cone, 535 U.S. 685, 695-96 (2002).⁵ As the Court of Appeals for the First Circuit articulated inOuber, defense counsel's failure to deliver testimony promised during opening statements does not fall within one of the three specific Bell categories in which prejudice is presumed.Ouber, 293 F.3d at 33.

5 The Supreme Court in Bell carves out three narrow exceptions to the Strickland prejudice prong which requires the defendant to demonstrate actual prejudice, specifically that the trial's outcome would have been different but for defense counsel's blunders. The Bell Court presumes prejudice in each of the following instances: first, a trial is presumptively unfair if the "accused is denied the presence of counsel at a `critical stage'" of the proceeding, Bell, 535 U.S. at 695 (quoting, inter alia, Hamiton v. Alabama, 368 U.S. 52, 54 (1961)); second, a presumption of prejudice follows if "counsel entirely fails to subject the prosecution's case to meaningful adversarial testing," id. at 696 (citing United States v. Cronic, 466 U.S. 648, 659 (1984)); and third, when "counsel is called upon to render assistance under circumstances where competent counsel very likely could not," id. (quoting Powell v. Alabama, 287 U.S. 45 (1932)), a presumption of prejudice is warranted.

Thus, had Ruine succeeded in showing Brafman's performance ineffective, he would still need to show that Brafman's conduct "actually had an adverse effect on the defense" such that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694. The trial court correctly noted that the jury was instructed repeatedly not to draw an adverse inference from Ruine's failure to testify, was not given a missing witness charge with respect to Mrs. Ruine, and in fact sent a note to the trial judge requesting greater clarification as to how much weight, if any, it was to ascribe to Mrs. Ruine's silence. As such, the trial court's determination that Ruine was not prejudiced by Brafman's acts and omissions was not objectively unreasonable. See Williams, 529 U.S. at 410.

The Lesser Charge Options

Ruine argues that Brafman was ineffective in failing to inform him about the serious consequences of his decision not to request submission of any lesser charge options to the jury that might have invited a compromise.

Counsel has the duty "to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution."Strickland, 466 U.S. at 688. Ruine states that had he fully understood his options and the sentencing and bond pending appeal consequences with respect to the "charge down" charges, he never would have taken an "all-or-nothing" position. Brafman responds to these allegations, stating,

[Co-counsel] and I, again and again and again, separately and together, sought to impress upon Defendant and his wife the risk he was taking in not offering the jury an alternative to a verdict in the Second Degree. Indeed, as the trial progressed, it became apparent that this was clearly a case in which a jury might wish to compromise and convict only on a lesser charge. We begged Defendant to consider a charge down to Criminally Negligent Homicide. Defendant, however, was not willing to be exposed to any prison sentence and was adamant in his refusal.

Notably, on the Sunday before the defense closed, when Defendant, Mrs. Ruine, [co-counsel] and I met in our conference room for the full day, we even reminded Defendant and his wife of the fate of Jean Harris, in the notorious Scarsdale diet doctor case, who had also gambled on an acquittal, where the facts in that case had cried out for a compromise verdict, only to end up serving a life sentence. Defendant remained unimpressed and refused to alter his position. (Resp. Appendix, Exh. E., at 18) (emphasis in original).

Ruine further argues that when the trial judge expressed concern during the charge conference with Ruine's position, it was incumbent on Brafman to convey that concern to petitioner so he could re-think his position. However, the trial judge found, as a matter of fact, that he never expressed any concern over Ruine's decision to forgo the submission of any lesser charges. (Resp. Appendix, Exh. G., at 5). Specifically, the trial judge concluded,

At the close of a case I invariably ask the parties whether they have any requests with regard to my charge to the jury, including any requests for lesser included offenses. I did so in this case. Although I wanted to be certain as to the defendant's decision [to forego lesser included charges], I did not express concern (i.e., worry, care or anxiety) as the wisdom of his choice. Trial counsel could not, thus, have conveyed my "concern" to the defendant as there was no concern to convey.

(Id.)

Applying both an objective standard of reasonableness and the requisite presumption of trial counsel's effectiveness, Brafman's performance with respect to informing his client of lesser included charges is not deemed deficient under the first prong ofStrickland. Petitioner's claim of ineffective assistance fails. Failure to Impeach a Witness

Ruine claims that Brafman should have impeached a witness with her out-of-court statement where the witness testified at trial that, after the shooting, Ruine walked over to where the deceased was lying, lifted him a foot off the ground by his shoulders, and then dropped his head back down to the pavement (Arra: R00900-901). The witness had made a handwritten statement to the police indicating that although petitioner had lifted Walker and then let him go, he had not done so "in a callous manner" (Amended Pet. at 77). As the trial judge found, this simply did not rise to the level of ineffectiveness. Ruine cannot show that any omission in Brafman's impeachment impacted the verdict.

Failure to Introduce Evidence

Ruine argues that Brafman should have sought to introduce into evidence a box cutter "holster" which he claims Walker possessed at the time of his death. Ruine cites no portion of the trial record to support his contention that the deceased possessed any such "holster." Further, any oversight by Brafman in this regard could not have affected the trial's outcome. Failure to Investigate a Potential Witness

Ruine argues that Brafman's failure to investigate a potential witness's testimony which would have corroborated Ruine's justification defense was ineffective assistance of counsel.

The witness was brought by Brafman's investigators to his office during the trial. Ruine claims that Brafman's failure to have a Spanish language interpreter present and passing the witness off to Brafman's investigator to be interviewed instead of personally interviewing him did not justify a determination by Brafman that the witness could not be believed.

"[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Strickland, 466 U.S. at 690-91. Deferring to Brafman's exercise of reasonable professional judgment, and given the broader context of defense counsel's trial strategy to present testimony from three different expert witnesses, Brafman's decision to forego additional investigation of this alleged potential witness does not rise to ineffective assistance nor does Ruine demonstrate that this omission affected the verdict.

Failure to Conduct an Evidentiary Hearing

Ruine also argues that the judge erred in denying his N.Y.C.P.L. § 440.10 motion without an evidentiary hearing. Ruine argues that the New York courts erroneously relied upon Ruine's alleged failure to provide a waiver of the attorney-client privilege to trial counsel as the basis for refusing to convene an evidentiary hearing on his ineffectiveness claim even though the filing of the ineffectiveness claim constituted a waiver of the attorney-client privilege and that the denial of his claim without a hearing deprived him of his due process rights to fully and fairly present these claims.

This is not an independent basis for finding that his constitutional rights were violated. Diaz v. Greiner, 110 F.Supp. 2d 225, 235-36 (S.D.N.Y. 2000) ("[F]ederal habeas relief is not available to redress alleged procedural errors in state post-conviction proceedings." Ortiz v. Steward, 139 F.3d 923, 939 (9th Cir. 1998), cert. denied, 526 U.S. 1123, (1999);Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (an attack on a N.Y.C.P.L. § 440.10 motion "does not entitle the petitioner to [federal] habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the detention and not the detention itself"); Turner v. Sullivan, 661 F.Supp. 535, 540-41 (E.D.N.Y. 1987), aff'd 842 F.2d 1288 (2d Cir.), cert. denied, 487 U.S. 1240 (1988) (claim that trial court violated due process by denying N.Y.C.P.L. § 440.10 motion without setting out findings, conclusions and its reasoning not cognizable on federal habeas review).

Conclusion

For the reasons discussed above, Ruine's habeas petition is denied. Because Ruine has not made a substantial showing of the denial of a constitutional right, a certificate of appealability will not issue. See 28 U.S.C. § 2253 (c) (2); Lucidore v. N.Y.S. Div. of Parole, 209 F.3d 107, 111-13 (2d Cir. 2000). Pursuant to 28 U.S.C. § 1915 (a) (3), the Court also certifies that any appeal from this order would not be taken in good faith.See Coppedge v. United States, 369 U.S. 438, 444 (1962).

It is so ordered.