Opinion
99 Civ No 10765 (GEL).
December 1, 2000.
Jose Soltero, pro se for Petitioner Jose Soltero.
Robert T. Johnson, District Attorney for Bronx County, Bronx, New York (Nancy D. Killian, Assistant District Attorney, Bronx, NY, of counsel), for Respondent Robert H. Kuhlman.
OPINION AND ORDER
On September 7, 1999, this Court's Pro Se Office received a writ of habeas corpus from Jose Soltero ("Soltero" or "Petitioner") challenging his convictions for murder, attempted murder, and first degree assault, following a jury trial held in New York State court in 1994. For the reasons discussed below, the petition is denied.
I. Background
Petitioner was charged with chasing six unarmed men into a vacant lot and shooting them. The evidence at trial — consisting primarily of eyewitness testimony of surviving victims, and physical evidence including shell casings shown to have been fired from petitioner's handgun — was more than sufficient to permit the jury to conclude that petitioner was one of four men who carried out the attack. By judgment rendered November 9, 1994, in Supreme Court. Bronx County, petitioner was convicted of Murder in the Second Degree (New York Penal Law § 125.25[2]), Attempted Murder in the Second Degree (New York Penal Law §§ 110/125.25[l]), and Assault in the First Degree (New York Penal Law § 120 10[1], and was sentenced to consecutive indeterminate terms of imprisonment totaling thirty and one-third years to life. On November 6, 1997, the Appellate division unanimously affirmed petitioner's conviction See People v. Soltero, 244 A.D.2d 156 (1st Dep't 1997). On June 2, 1998, the New York Court of Appeals denied leave to appeal. See People v. Soltero, 92 N.Y.2d 861 (1998).
Petitioner now seeks habeas corpus on grounds that the trial court (1) violated his Sixth Amendment rights by refusing his motion for substitution of counsel, and (2) erred in refusing to render a proposed jury charge on the meaning of reasonable doubt in cases where the evidence is wholly circumstantial.
II. Timeliness
At the threshold, the state argues that the petition was untimely, in view of the one-year limitations period for habeas applications imposed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(d) But the state's calculation is in error. Contrary to the state's position, it is the law of this Circuit that the one-year period begins to run not with the denial of leave by the state's highest court, but rather at the expiration of the period for seeking direct review from the United States Supreme Court See Valverde v. Stinson, 224 F.3d 129, 132 (2d Cir 2000) ("[Petitioner's] conviction became final when the ninety-day period to seek direct review from the United States Supreme Court by way certiorari expired") (citing Warren v. Garvin, 219 F.3d 111, 112 (2d Cir. 2000) and Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998)). Thus, the limitations period in this case began running on August 30, 1998, when the ninety-day period for seeking a writ of certiorari expired. See S. Ct R. 13(1) (establishing ninety-day period for filing petition for writ of certiorari).
The stare is also wrong about the effective date of filing. The petition is dated August 28, 1999 — within the limitations period. Although the petition was not filed in this Court until September 7, pro se prisoner petitions are deemed filed for AEDPA purposes on the date of delivery to prison authorities for mailing. See Nelson v. Walker, 121 F.3d 828, 832 n. 2 (2d Cir. 1997) ("A pro se habeas petitioner is deemed to have filed his notice of appeal "at the time petitioner delivered it to the prison authorities for forwarding to the court clerk'") (quoting Houston v. Lack, 487 U.S. 266, 276 (1988)). The court file in this case contains the original envelope in which the petition was mailed (postmarked September 1, 1999), but does not reveal whether or not the petition was delivered to prison authorities prior to August 30th. Perhaps further inquiry as to the date of delivery would be warranted if the petition had merit. Since it does not, however, it is appropriate to assume, arguendo, that the petition was timely delivered to the prison authorities by August 30th. See Reese v. Greiner, No 97 Civ 5622 (MGC), 1997 WL 694716, at *1 (S D.N Y Nov 6, 1997) (assuming for purposes of opinion that undated habeas petition was delivered to prison authorities within limitations period).
III. Standard of Review
When the claims presented in an application for habeas corpus relief have been filly presented to the highest state court, a federal court may only grant the application if the state court adjudication "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." 28 U.S.C. § 2254 (d)(l). The application of 2254(d)(1) is straightforward when applied to issues that the Supreme Court has clearly addressed. In order to obtain relief on such issues, petitioners must show that Supreme Court precedent requires an outcome contrary to that reached by the relevant state court. See Williams v. Taylor, 120 S.Ct. 1495, 1519 (2000) ("The state court decision must [1] be substantially different from the relevant precedent of this Court, or [2] apply a rule that contradicts the governing law as set forth in our cases"); Francis v. Stone, 221 F.3d 100, 108 (2d Cir. 2000) (same) (quoting Williams). Where no Supreme Court decisions explicitly govern the particular issue, however, federal habeas courts apply the "unreasonable application" prong of section 2254(d)(1). See Lurie v. Wittner, 228 F.3d 118, 128 (2d Cir. 2000) ("Where the state-court decision is not directly opposed to Supreme Court precedent, but involves an application of the high court's caselaw, federal habeas petitions are judged under the 'unreasonable application' standard"). Under that prong, federal habeas relief may lie in favor of a state prisoner when a state court correctly identifies the applicable federal rule, but applies it in an objectively unreasonable manner to the facts of the particular case. See Williams, 120 S.Ct. at 1521-22 (question is "whether the state court's application of clearly established federal law was objectively reasonable"), Francis, 221 F.3d at 109 (reading Williams to require that "[a] state court decision must not only be erroneous but also unreasonable") "Some increment of incorrectness beyond error is required"Francis, 221 F.3d at 109. This reduces to a question of whether the state court's application of the law to the facts of the particular case, as evidenced by the conclusion that it reached, was objectively reasonable pursuant to the Supreme Court's clearly established case law. See Vasguez v. Strack, 228 F.3d 143, 148 (2d Cir 2000) ("If petitioner's claim reduces us to apply a rule of law that was not clearly established Federal law as determined by the Supreme Court at the time of the state court determination, Section 2254(d)(1) bars relief").
It is unnecessary for purposes of this case to explore further the nuances of this standard, since the state court committed no constitutional error at all.
IV. Substitution of Counsel
Petitioner's first claim is that the trial court committed constitutional error when it denied his pre-trial request for substitution of his appointed counsel. Because no Supreme Court precedent expressly controls this precise issue, section 2254(d)(1)'s "unreasonable application" prong governs petitioner's claim, and the question becomes "whether or not the state court's application of the of clearly established federal law was objectively reasonable." Williams, 120 S. Ct. at 1521-22.
Petitioner cites a number of federal cases that consider whether it was an abuse of discretion for a trial court to deny such requests. But cases dealing with parties who have retained counsel (and thus have at least a limited right to counsel of their choice), or cases arising under the Criminal Justice Act (setting standards for appointment of counsel in federal cases) are of limited relevance in deciding the rights under the Sixth Amendment of indigent defendants (like petitioner) in state cases. The Supreme Court has stated that "impecunious" defendants have no Sixth Amendment right to choose their counsel The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts" Caplin Drysdale v. United States, 491 U.S. 617, 624 (1989). See also Wheat v. United States, 486 U.S. 153, 158 (1988) ("[T]he essential aim of the [Sixth] Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers") Absent a claim of ineffective assistance, the state court's decision to deny petitioner's motion to substitute counsel conflicts neither with any particular Supreme Court decision nor with any general principle of Supreme Court jurisprudence. Although the Sixth Amendment guarantees assistance of counsel, the Supreme Court has held that it does not guarantee an absolute right to the counsel of one's choosing even for those with retained counsel, see Wheat, 486 U.S. at 160, a "meaningful" attorney-client relationship, see Morris v. Slappy, 461 U.S. 1, 12-15 (1983), or complete satisfaction with counsel's performance, see United States v. Cronic, 466 U.S. 648, 657 n. 21 (1984) ("[T]he appropriate inquiry focuses on the adversarial process, not on the accused's relationship with his lawyer as such")
See, e.g., United States v. Corporan-Cuevas, 35 F.3d 900, 936 (4th Cir. 1994) (finding no abuse of discretion where trial court denied motion to substitute counsel where (I) the motion was made on the first day of trial, (2) the court inquired into the defendant's complaint, and (3) the court found no conflict which prevented an adequate defense);United States v. Hall, 906 F.2d 310, 313 (7th Cir. 1994) (no abuse of discretion where motion to substitute counsel was made ten days before sentencing and there was no evidence that attorney client relationship had deteriorated to the point where there was a "total lack of communication preventing an adequate defense").
Recognizing these limitations, the Second Circuit has consistently held that belated substitution of counsel is warranted only by "good cause, such as a conflict of interest, a complete breakdown of communication or an irreconcilable conflict which leads to an apparently unjust verdict"McKee v. Harris, 649 F.2d 927, 931 (2d Cir 1981) (internal quotation marks and citations omitted), see also United States v. Schmidt, 105 F.3d 82, 89 (2d Cir 1997) ("On the eve of trial, just as during trial, a defendant can only substitute new counsel when unusual circumstances are found to exist, such as a complete breakdown of communication or an irreconcilable conflict"), United States v. Llanes, 374 F.2d 7P 717 (2d Cir 1967) ("Judges must be vigilant that requests for appointment of a new attorney on the eve of trial should not become a vehicle for achieving delay")
Absent direct Supreme Court precedent on point, cases from this Circuit applying the Court's relevant principles are relevant as to whether a state court's decision is objectively reasonable. See, e.g., Williams v. Mattesanz, ___ F 3d ___, 2000 WL 1577064, at *2-3 (1st Cir. Oct. 25, 2000), Tom v. Artuz, No 97 Civ 4697 (MBM), 1999 WL 553778, at n. 1 (S.D.N.Y. July 29, 1999).
Even applying the "abuse of discretion" standard preferred by petitioner, the record in this case shows conclusively that the trial court's refusal to substitute counsel was entirely reasonable. Petitioner moved for substitution of counsel on the third day of his suppression hearing, two weeks before his trial began, by informing the court as follows:
I do not feel Mr. Schwartz is representing me to the best of his capability. I see another [sic] lawyers asking question that don't concern their clients and yet my lawyer is not asking the questions that I want to lay out to him and I don't have enough confidence in my lawyer to give him the questions.
References preceded by "H," are to the transcripts of petitioner's pretrial hearing. References preceded by "T," are to the transcripts of petitioner's trial.
Well the court disagrees. You're fortunate to have [the lawyer in question] represent you. He obviously had consulted with you. But there are occasions when a lawyer chooses for a whole variety of reasons why he may not want to ask particular questions. One, because they may not be relevant, or two, because for some particular tactical reason he chooses not to put questions . . . which may be unknown to the court.
We are now in the middle of a hearing. The case is about to proceed to trial. It's a very old case. I just regard this as being a delaying tactic.
(H. 224-225.) Petitioner then told the court that he had "submitted a reassignment of counsel motion many months back." (H. 224.) But the court found no such motion in the court file (H. 225), and the record contains no evidence that such a motion was ever made.
Both the state trial court (H. 224) and the appellate division (Soltero, 244 A.D.2d at 157) found that there was no such motion anywhere in the record. Those findings are entitled to deference, and petitioner has not met his burden of rebutting them. See § 2254(e)(1) (state court determination of a factual issue is "presumed to be correct" and the petitioner can rebut the presumption only be "clear and convincing evidence"). At any rate, even if petitioner had made an earlier request for substitution of counsel, there is still nothing in the Supreme Court's case law, or principles of the Sixth Amendment as applied in the federal courts generally, that would make unreasonable the court's ultimate denial of petitioner's request.
Thus, on the present record, it appears that petitioner moved for substitution of appointed counsel — at a pretrial hearing, two weeks before the start of trial — on grounds that petitioner did not like the lawyer's questioning of witnesses and did have enough confidence in the lawyer to suggest additional questions to him. The trial judge heard petitioner's complaint, and denied it on three grounds: (1) there was no evidence of a breakdown in communication between petitioner and appointed counsel, (2) petitioner had no constitutional right to direct the questioning of witnesses or otherwise make tactical decisions regarding his defense, and (3) the late timing of the complaint was suspicious. The trial court's denial of petitioner's eleventh-hour request to change counsel was neither contrary to, nor an unreasonable application of, clearly established federal law Tactical decisions such as trial strategies or the questioning of witnesses are left to the discretion of appointed counsel, see Jones v. Barnes, 463 U.S. 745, 751 (1983) (tactical decisions are left to counsel's professional judgment), Faretta v California, 422 U.S. 806, 820 (1975) (noting that "when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy"), yet petitioner gave no other reason for his alleged lack of confidence in his attorney, and no clearly established federal rules required the trial judge to further examine whether there were indeed other grounds for his dissatisfaction.See McKee, 649 F.2d at 933 (absent a "seemingly substantial complaint about counsel" a trial court has no duty to inquire into the reasons for dissatisfaction) (internal citations omitted). This is particularly so on the eve of trial.
See Schmidt, 105 F.3d at 89 ("[a] trial court may require a defendant to proceed with counsel not of defendant's choosing"); McKee, 649 F.2d at 931 ("certain restraints must be put on the reassignment of counsel lest the right be manipulated so as to obstruct the orderly procedure of the courts or to interfere with the fair administration of justice"), United States v. Calabro, 467 F.2d 973, 986 (2d Cir 1972) ("[a] defendant with assigned counsel cannot decide for no good cause on the eve or in the middle of trial that he will have another attorney represent him")
Denial of petitioner's motion to substitute counsel was reasonable in light of clearly established federal law. Accordingly, Section 2254(d)(1) precludes habeas relief.
V. Ineffective Assistance
Petitioner made a number of complaints before the Appellate Division about counsel's performance, and he reiterates those complains here. Notably, however, petitioner does not explicitly contend that counsel provided ineffective assistance at trial, and makes no objection of any kind to counsel's trial performance or decisions. Since pro se petitions must be liberally construed Dorsey v. Kelly, 112 F.3d 50, 52 (2d Cir 1997), and in order to arrive at a fair disposition of all possible intended claims, the Court assumes that petitioner has also advanced an argument that trial counsel was constitutionally ineffective for the reasons stated in his petition. Any such argument would be, in any event, without merit.
To establish ineffective assistance of counsel, petitioner must satisfy both elements of the two-part test of Strickland v. Washington, 466 U.S. 668 (1984). Specifically, a petitioner must demonstrate that "(1) counsel's performance was deficient and (2) the deficient performance prejudiced the defense." Bunkley v. Meachum, 68 F.3d 1518, 1521 (2d Cir. 1995) (emphasis added) (citing Strickland, 466 U.S. at 688, 694). There is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy."Strickland, 466 U.S. at 689 (internal quotation marks and citations omitted).
Petitioner complains that counsel did not answer his questions, did not return his phone calls, urged him to plead guilty, declined to make bail applications, and failed to provide him with requested documents. (Pet Mem. Law at 15-17, Killian Aff Ex 1 at 39-40 ) If petitioner's account is true — and the trial court appears to have made contrary findings on at least one key issue — counsel was at most inappropriately brusque and failed in his duty to keep his client fully informed. But petitioner does not come close to showing the prejudice necessary to establish ineffective assistance of counsel. "No decision of [the Supreme] Court suggests that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to present those points" Barnes, 463 U.S at 751. When counsel declined to make a bail application, petitioner himself made two such applications, both of which were denied. (H. 225.) And to the extent that counsel urged petitioner to accept a plea offer, the state correctly points out that in light of the strength of the state's case and the eventual outcome at trial, "in retrospect, advice to accept a plea bargain of 8 1/3 to 25 years was sound." (N.Y Mem. Law at 12.)See, e.g., McKee, 649 F.2d at 932 ("[Petitioner's] constitutional right to counsel does not mean counsel who will be optimistic in his private appraisal of the evidence and his advice to the accused") (internal quotation marks omitted). Finally, petitioner does not challenge any of counsel's actions during the trial, and makes no effort to show that counsel's alleged rudeness or failure to keep petitioner informed affected the outcome of his trial.
As mentioned above, in response to petitioner's request for substitution, the trial judge pointedly observed that petitioner was "fortunate to have" the lawyer in question as counsel, and that, contrary to petitioner's position, counsel "obviously" had consulted his client. (H. 223-24.) At a minimum, this represents a determination, based on the trial judge's observations of the proceedings, that counsel was proceeding effectively and had evidently consulted sufficiently to do an effective job. Moreover, the Appellate Division found with regard to petitioner's complaints about his appointed counsel "that the record does not support any of [his] claims." Soltero, 244 A.D. at 158. These findings are entitled to, and are accorded, full respect from this Court. See 28 U.S.C. § 2254(d)(2). But because it is so plain that the alleged derelictions of counsel do not rise to the level of constitutional violations even if they occurred, I address them on their merits rather than be drawn into discussion of whether the state court findings encompass all of petitioner's objections.
Petitioner claims that he succeeded in these bail applications and that the trial judge granted petitioner bail in the sum of $75,000. (Pet. Mem. Law at 7) When the same claim was made to the state trial judge, the court stated on the record found that it could find nothing in the court file to support this claim, and instead determined that it had denied several bail motions by petitioner. Whether or not bail was granted, however, it appears that petitioner never succeeded in making bail. Defense counsel's failure to make a bail motion that was either denied or achieved only academic success demonstrates neither ineffectiveness nor prejudice. See, e.g. Martuzas v. Reynolds, 983 F. Supp. 87, 93 (S.D.N.Y. 1997) ("An attorney is not required to make a motion on every conceivable ground to provide effective assistance. It is enough for counsel to have considered the probable success of such motion") (internal citations omitted).
For these reasons no matter how liberally the petition is construed, petitioner's complaints about his lawyer do not implicate the fundamental fairness of his trial, and therefore do not implicate Sixth Amendment protections. See Lockhart v. Fretwell, 506 U.S. 364, 368 (1993) ("[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated"). Habeas relief on this ground is accordingly denied.
VI. Jury Instruction
Petitioner's final claim, to which he devotes little space, is entirely fanciful. The trial court found that petitioner's requested circumstantial evidence charge was not warranted given that there was direct evidence of the charged crimes. Direct testimony by victim witnesses showed that Soltero and a co-defendant aimed at, shot, and seriously wounded two people, and that they chased and shot dead another. (T. 275-76, 281-95, 456-59, 477-79) Though some of the evidence was circumstantial as to whose bullet struck which victim, the court ruled that some direct evidence is alone sufficient to deny a circumstantial evidence charge. See Soltero, 244 A.D.2d at 157 ("The court properly denied defendants' request for a circumstantial evidence charge because the evidence presented was not wholly circumstantial"). This ruling finds ample support in state precedent. See People v. Holmes, 612 N.Y.S.2d 153, 154 (1st Dep't 1994) (holding that circumstantial evidence charge required only where evidence is "purely" or "completely" circumstantial). But even if the trial court had erred in its interpretation of state law. the Supreme Court has held that the kind of circumstantial evidence charge requested by petitioner at trial is neither required nor preferred in federal prosecutions, even where the evidence is wholly circumstantial. See Holland v. United States, 348 U.S. 121, 139-40 (1954) ("[W]here the jury is properly instructed on the standards for reasonable doubt . . . an additional instruction on circumstantial evidence is confusing and incorrect") (internal citations omitted). A fortiori, it is not constitutionally required. See, e.g., Ramos v. Costello, 1997 WL 231129, at *3 (S.D.N.Y. May 7. 1997) ("Due process does not require such an instruction even where the evidence is wholly circumstantial") (citing Holland).
CONCLUSION
Assuming that the petition was timely filed, it is without merit, and is denied. As petitioner 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); Fed.R.App.P. 22(b); Lozada v. United States, 107 F.3d 1011, 1015 (2d Cir. 1997)