Opinion
No. 02-CV-28 (FB).
November 5, 2004
ANDREA G. HIRSCH, ESQ., New York, NY, For the Petitioner:
CHARLES J. HYNES, ESQ., District Attorney, Kings County, CYNTHIA KEAN, ESQ., Brooklyn, NY, For the Respondent:
MEMORANDUM AND ORDER
Petitioner Victor Soto ("Soto") seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 following his July 26, 1995 convictions in New York Supreme Court, Kings County, for murder in the second degree, criminal possession of a weapon in the second and third degrees, and grand larceny in the fourth degree. Soto argues that trial counsel rendered ineffective assistance by (1) not advising him of or presenting the defense of extreme emotional disturbance, (2) encouraging him to perjure himself, and (3) not raising certain arguments when he moved to have Soto's inculpatory statements to the police suppressed. For the reasons set forth below, the petition is denied.
BACKGROUND
On or about August 24, 1993, Soto hired two men to kill Oscar Valverde ("Valverde"), who had been having an affair with Soto's wife. The following day, Soto drove one of the men from Brooklyn into Manhattan to show him where Valverde worked. On August 27, Soto rented a van for the men to use in the killing, but returned it after he was unable to find them. On September 1, he again met up with the two men, negotiated the price of $3,000 for the killing, formulated a plan to steal a van to abduct Valverde from his workplace, and assisted them in stealing a van. He then drove to Valverde's workplace with the two men following him in the van and pointed Valverde out to them. The two men grabbed Valverde, forced him into the van, drove him to a location in Fort Greene under the Brooklyn Queens Expressway, and shot him twice, killing him.During the police investigation that followed, Soto was implicated in the killing. On September 29, 1993, two police detectives, Frank Berberich ("Berberich") and Jose Torres ("Torres"), went to Soto's home; they spoke to Soto and then took him to the precinct house for further questioning. There Berberich introduced Soto to Detective Vincent Coleman ("Coleman"), the precinct detective assigned to the case. At trial, both Berberich and Torres testified that Berberich gave Soto Miranda warnings before he was questioned at the precinct house. Coleman testified that, to the best of his recollection, before he spoke to Soto, Berberich told him that he had read Soto his Miranda rights. During his interview with Coleman, Soto made two inculpatory statements, both of which Coleman reduced to writing, which he had Soto review and sign. Later, Soto gave an audiotaped statement to Assistant District Attorney Richard Cohen, who gave Soto an additional Miranda warning before commencing his interview. During his audiotaped statement, Soto explained that when his wife told him that she may leave him for Valverde, "I didn't know what to do. I went just crazy." In his statements, Soto described his involvement in the murder as set forth above.
Soto was charged with kidnaping, felony murder, murder in the second degree, grand larceny in the fourth degree, and two counts each of criminal possession of a weapon in the second and third degrees. The trial court held a suppression hearing pursuant to People v. Huntley, 15 N.Y.2d 72 (1965). During the Huntley hearing, Soto's trial counsel, Jacob Eversoff ("Eversoff"), moved to have Soto's statements to the police suppressed on the bases that he was not Mirandized before the police spoke to him at his home, that Coleman had not himself Mirandized Soto before questioning him, and that his statements were coerced. The court denied the motion.
At trial, Soto presented three character witnesses, all of whom testified as to his good character for honesty and peaceableness. Soto testified that he did not hire the two men to kill Valverde, did not assist them in stealing a van, and did not know anything about the killing. He attempted to explain away his statements to the police by testifying that Berberich denied his repeated requests for a lawyer, that neither Berberich nor Coleman gave him his Miranda rights, that the detectives refused to allow him pain medication he needed, and that they wore him down over several hours until, just to get out of the interview room, he signed statements which he did not understand because he could barely read English. With regard to his audiotaped statement to Assistant District Attorney Cohen, he testified that Colman had threatened him that if he did not tell Cohen what Coleman told him to say, he would have to go back to the interview room.
The jury returned a verdict acquitting Soto of felony murder and kidnaping but finding him guilty of all other crimes charged. Judgment of conviction was entered on July 26, 1995; Soto was sentenced to twenty-five years to life on the murder count and lesser concurrent sentences on the remaining counts.
In June 1998, Soto, represented by new counsel, Andrea Hirsch ("Hirsch"), moved to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10 ("440.10 motion"). In his 440.10 motion, Soto argued that Eversoff was ineffective for failing to discuss the defense of extreme emotional disturbance with him or consider presenting that defense. In an affirmation submitted in connection with the motion, Eversoff stated that he "never considered the possibility of raising" the defense (and thus, implicitly, never discussed it with Soto), "because doing so would have required Mr. Soto to admit having had an intent to kill the deceased, which he denied, and would in its nature have been inconsistent with [Soto's] proffered defense." Resp't's Ex. G (Affirmation [of Jacob R. Eversoff]). Eversoff explained in his affirmation that he had believed Soto's statements to the police "raised a major issue as to the custodial nature of the initial Police interrogation and the failure to advise him of his right against self-incrimination on several occasions, as well as the physical circumstances surrounding what appeared to be coerced statements." Id. He also "hoped that the jury might acquit Mr. Soto because he was a sympathetic figure, and the evidence painted his wife in a much less favorable light[.]" Id.
The New York Supreme Court found Soto's ineffective-assistance claim to be procedurally barred because "[a]ll the arguments raised by [Soto] to support [his] motion are based upon facts appearing upon the record." People v. Soto, No. 11610/93 (N.Y.Sup.Ct., Kings County Aug. 18, 1998). In doing so, the court relied on C.P.L. § 440.10(2)(c), which mandates denial of a motion to vacate the judgment when, although sufficient facts appear on the record to permit an appeal, a defendant unjustifiably fails to timely take or perfect an appeal. In addition, applying the familiar two-prong standard set forth in Strickland v. Washington, 466 U.S. 668 (1984), the court determined Soto's claim to be without merit, reasoning that (1) because the extreme emotional disturbance defense was inconsistent with Soto's innocence defense, Eversoff's strategic decision not to counsel him on or present the former defense was reasonable, and (2) because Soto could not have carried his burden of proving extreme emotional disturbance, he was not prejudiced by Eversoff's decision. The Appellate Division summarily denied leave to appeal. See People v. Soto, No. 99-06836 (2d Dep't Aug. 30, 1999).
A claim is fully exhausted once the Appellate Division has denied leave to appeal the denial of a 440.10 motion because further appeal to the Court of Appeals is not available. See N.Y. Rules of Court, Court of Appeals, § 500.10(a).
Soto then perfected a direct appeal from his judgment of conviction, arguing, once again, that counsel was ineffective for failing to advise him of or consider presenting an extreme emotional disturbance defense; he also argued that his sentence should be reduced. The Appellate Division reduced the sentence but affirmed the judgment of conviction, noting conclusorily that "[c]ontrary to defendant's contention, the failure of defense counsel to present a defense of extreme emotional disturbance did not constitute ineffective assistance of counsel." People v. Soto, 715 N.Y.S.2d 331 (2d Dep't 2000). Soto unsuccessfully sought leave to appeal on that issue from the New York Court of Appeals. See People v. Soto, 96 N.Y.2d 788 (Mar. 6, 2001).
Based on the record before the Court, although Soto perfected his direct appeal after the Appellate Division denied leave to appeal with respect to the 440.10 motion, it is unclear when Soto filed his notice of appeal; in any event, although Soto did not perfect his appeal until nearly five years after his conviction, the respondent does not raise any procedural bar issues with respect to the timeliness of the filing or perfection of his direct appeal.
Because Soto did not seek a writ of certiorari from the United States Supreme Court, his judgment of conviction became final ninety days thereafter. See Ross v. Artuz, 150 F.3d 97, 98 (2d Cir. 1998) (a "conviction bec[omes] final for [AEDPA] purposes when [the] time to seek direct review in the United States Supreme Court by writ of certiorari expire[s]"); Sup. Ct. R. 13 (unless otherwise provided by law, petitions fo certiorari must be filed within ninety days after "a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals").
On December 31, 2001, Soto filed his habeas petition, once again arguing that Eversoff was ineffective for failing to apprise him of or consider presenting the extreme emotional disturbance defense. Over the following months, Soto submitted several declarations and other supplemental materials in support of his petition. Each successive filing added new allegations against Eversoff, namely: that Soto had admitted his guilt to Eversoff and that Eversoff's affirmation rendered in connection with Soto's 440.10 motion was, therefore, untrue; that Eversoff had encouraged Soto to perjure himself by testifying that he was not involved in the killing; and that Eversoff had told Soto that, when Eversoff was younger, his wife had an affair and a friend had to convince him not to kill her, and that Eversoff's failure to consider the extreme emotional disturbance defense was, therefore, the result of his inability to recognize that his own murderous thoughts had been a symptom of such disturbance. Soto conceded that his new allegations had not been exhausted and moved for a stay of his habeas petition pending exhaustion of state court remedies. The Court granted the motion. See Soto v. Portuondo, CV-02-28 (E.D.N.Y. March 3, 2003).
Soto then brought a second C.P.L. § 440.10 motion ("second 440.10 motion") in New York Supreme Court, raising his new allegations about Eversoff's truthfulness and conduct to bolster the argument that Eversoff was ineffective for failing to discuss the extreme emotional disturbance defense with him or consider presenting that defense. In addition, Soto claimed that Eversoff was ineffective for encouraging Soto to perjure himself and for failing to raise certain arguments when he moved to suppress Soto's inculpatory statements. The court denied the motion, finding it to be procedurally barred under C.P.L. § 440.10(3)(b) and (c) because "[t]he claims raised in this motion were raise[d] or could have been raised by [Soto] in his prior . . . 440.10 motion" See People v. Soto, No. 11610/93, slip op. at 8 (N.Y.Sup.Ct., Kings County Aug. 20, 2003).
The court also reached the merits of Soto's claims. With regard to the emotional disturbance defense, the court explained:
Defendant's conduct leading to the murder strongly negates the affirmative defense of [extreme emotional disturbance]. Defendant hired contract killers to kill his wife's lover, he found out where the lover worked, he went to the victim's place of business two times, first he rented a van then he helped the killers steal a van, he went along with the killers, he paid them money. On these facts and on the fact that defendant planned this murder over a period of a week coupled with statements to the police it is not reasonable to suggest defendant would have been able to establish by a preponderance of the evidence an [extreme emotional disturbance] defense. . . . The evidence established the murder was carefully planned, a premeditated assassination, during which defendant was in full command of his facilities and showed no loss of self control.Id. at 6-7. For these reasons, the court concluded that, under Strickland, Eversoff's decision not to advise Soto of or present an extreme emotional disturbance defense reflected reasonable trial strategy grounded in Eversoff's conclusion that the defense was not viable and, moreover, that his decision was not prejudicial. See id. at 7-9.
As for Soto's claim that Eversoff encouraged him to perjure himself, the court stated that "having knowingly and willingly participated in an attempt to obstruct justice through perjured testimony, defendant is not in a position to undo the consequences of his wrongdoing on the ground that he was encouraged to do so by his attorney." Id. at 9. In regard to Soto's claim that Eversoff failed to argue certain grounds for suppression of his statements, the court explained that "[d]efense counsel did make a motion to suppress defendant's statements, the fact that he may have made additional arguments for suppression does not establish ineffective assistance of counsel." Id. at 5. Soto's one permitted application for leave to appeal was summarily denied by the Appellate Division. See People v. Soto, No. 03-9202/9203 (2d Dep't Nov. 19, 2003).
Having now exhausted his state court remedies, Soto filed a supplemental habeas petition with the Court, in which he asserted the three ineffective assistance claims raised in his second 440.10 motion.
DISCUSSION I.
A. The Procedural Bar Issue
The government argues that because the state courts deemed Soto's claims to be procedurally barred, they are not properly before the Court. "It is now axiomatic that in `cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred.'" Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). This axiom remains true when, as here, the state court determines a claim to be procedurally barred but also rejects the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
Nonetheless, "hurdling the procedural questions to reach the merits of a habeas petition is justified" in certain circumstances, "`for example, if [the underlying issue is] easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law.'" Dunham, 313 F.3d at 729-30 (quoting Lambrix v. Singletary, 520 U.S. 518, 523 (1997)). The procedural bar issue in this case is complicated by the New York Supreme Court's reliance, in rejecting Soto's first 440.10 motion, on C.P.L. § 440.10(2)(c), which refers to a defendant's unjustifiable failure to timely take or perfect an appeal. As noted, respondent does not contest that Soto's conviction was appealable at the time of the motion ( see supra note 3); consequently, the parties agree that the court should have relied on C.P.L. § 440.10(2)(b), which provides for the denial a 440.10 motion when a judgment may still be appealable or an appeal is sub judice.
Additionally, in rejecting his second 440.10 motion, the court cited C.P.L. § 440.10(3)(b) and (c) for the proposition that it "must" deny the motion, although those subsections create a discretionary bar. Moreover, the deployment of the procedural bar in respect to the second 440.10 motion is further complicated by Soto's claim that it resulted from Hirsch's ineffectiveness in not gathering sufficient information from him when preparing his first 440.10 motion.
Because the merits of Soto's ineffective assistance claims are easily resolvable against him, the Court need not pass upon Hirsch's conduct or attempt to untangle the complicated procedural bar issues. See Dunham, 313 F.3d at 729-30 (reaching the merits of petitioner's claim because the "the underlying ineffective assistance of counsel issues [were] easily resolvable against [the petitioner]," whereas the state law procedural-bar issues were "complicated," although not "impossibly byzantine").
B. Standard of Review
Only federal issues may be raised on habeas review. See 28 U.S.C. § 2254(a); Estelle v. McGuire, 502 U.S. 62, 68 (1991). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), when a federal claim has been "adjudicated on the merits" by a state court, the state court's decision is entitled to substantial deference. See 28 U.S.C. § 2254(d). For such claims, habeas relief may not be granted unless the state court decision (1) 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) 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). "[A] determination of a factual issue made by a State court [is] presumed to be correct," and the applicant bears "the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
A state court decision is "contrary to" clearly established federal law "if the state court applies a rule that contradicts the governing law set forth" in Supreme Court precedent or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives" at a different conclusion. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision involves an "unreasonable application" of clearly established federal law if it unreasonably applies Supreme Court precedent to the particular facts of a case. See id. at 409. This inquiry requires a court to "ask whether the state court's application of clearly established federal law was objectively unreasonable," not whether the application was erroneous or incorrect. Id. In that respect, the standard to be applied "falls somewhere between merely erroneous and unreasonable to all reasonable jurists." Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000) (citations and quotations omitted). "We caution, however, that the increment [of incorrectness beyond error] need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (citations and quotations omitted).
II.
A. Ineffective Assistance of Counsel
Soto claims that Eversoff was ineffective because: (1) he failed to discuss the extreme emotional disturbance defense with Soto; (2) he encouraged Soto to perjure himself by testifying that he was not involved in the killing of Valverde; and (3) he failed to raise certain arguments when he moved to have Soto's inculpatory statements suppressed. The merits of the first claim were addressed by the New York Supreme Court on both of Soto's 440.10 motions and by the Appellate Division on Soto's direct appeal. The merits of the two other claims were addressed by New York Supreme Court on Soto's second 440.10 motion. In ruling on the 440.10 motions and direct appeal, the state courts appropriately recognized that their consideration of these claims should be guided by the Strickland standards.
In ruling on Soto's 440.10 motions, the New York Supreme Court cited Strickland. On direct appeal, the Appellate Division did not reference Strickland, but cited People v. Benevento, 91 N.Y.2d 708 (1998), which sets forth the Strickland standards. Although ineffective assistance of trial counsel claims may be raised on direct appeal, they "generally must be addressed to the trial court in the § 440.10 motion rather than on direct appeal because they ordinarily relate to matters of which only the trial court is aware and/or require knowledge and or review of the trial proceedings of which no record was ever made." Caballero v. Keane, 42 F.3d 738, 740 (2d Cir. 1994).
Under Strickland, a defendant must show that counsel's representation "fell below an objective standard of reasonableness" based on "prevailing professional norms," and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 688, 694. With regard to the first prong, there is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689. As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," whereas strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91. With regard to the second prong, Strickland defined a "reasonable probability" as "a probability sufficient to undermine confidence in the outcome." Id. at 694. The two prongs of the Strickland analysis may be addressed in either order," and [i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697.
1. Extreme Emotional Disturbance
In respect to Soto's contention that Eversoff should have informed him of and considered presenting the extreme emotional disturbance defense, he asserts that if Eversoff had told him about the defense, he would have pursued it rather than perjure himself by denying involvement in the murder.
In assessing whether a criminal defense attorney case has a duty to inform his client of an affirmative defense, the Second Circuit has noted that "[i]t would, of course, have been far better for counsel to have advised [defendant] of [an] affirmative defense . . . while recommending against its use.'" Panuccio v. Kelly, 927 F.2d 106, 109 (2d Cir. 1991) (noting that, although counsel had no duty to inform his client of intoxication defense, it would have been better for him to do so) (quoting Mitchell v. Scully, 746 F.2d 951, 957 (2d Cir. 1984)). Nonetheless,
It is not the normal practice of lawyers to advise their clients of every defense or argument or tactic that while theoretically possible is hopeless as a practical matter. . . . The fact that [a] . . . defense may have been [defendant's] only possible defense to any of the charges against him would not change this conclusion. "If there is no bona fide defense to the charge, counsel cannot create one and may disserve the interests of his client by attempting a useless charade."Evans v. Meyer, 742 F.2d 371, 374 (7th Cir. 1984) (quoting United States v. Cronic, 466 U.S. 648, 656 n. 19 (1984)); see also Panuccio, 927 F.2d at 109 (holding attorney's failure to advise his client of an affirmative defense did not render the assistance ineffective where counsel "had every reason to think that raising the defense had almost no chance of success"); Mitchell, 746 F.2d at 956-57 (2d Cir. 1984) ["[D]ue process does not require that a defendant be advised of every basis on which he might escape or receive a lesser punishment for an offense that he has committed. The distinction is particularly strong where . . . the burden of persuasion with respect to the appropriate defense rests on the defendant.").
In applying Strickland, the second 440.10 court concluded that because Soto could not have met his burden of proving the defense of extreme emotional disturbance, Eversoff had no duty to inform Soto of the defense, and that for this same reason, Soto was not prejudiced by Eversoff's omission. The Court need not reach the question of whether Eversoff failed to provide reasonable professional assistance by deciding not to inform Soto of or consider presenting the defense because the Court analyzes this claim under the "prejudice" prong of the Strickland analysis. See Ames v. New York State Div. of Parole, 772 F.2d 13, 16 (2d Cir. 1985) (concluding that defendant was not prejudiced by counsel's failure to discuss defense with him); Mitchell, 746 F.2d at 954 (same).
In order to prove the affirmative defense of extreme emotional disturbance, a defendant must show that he acted under the influence of an extreme emotional disturbance and that there was a reasonable explanation or excuse for that disturbance. See People v. Roche, 98 N.Y.2d 70, 75 (2002). A defendant who proves the defense by a preponderance of the evidence is guilty of manslaughter and not murder. See id. "The . . . defense is available to an individual whose mental state does not rise to the level of insanity, but who `is exposed to an extremely unusual and overwhelming stress' and `has an extreme emotional reaction to it as a result of which there is a loss of self-control and reason is overborne by intense feelings, such as passion, anger, distress, grief, excessive agitation, or other similar emotions." DeLuca v. Lord, 858 F. Supp. 1330, 1347 n. 15 (S.D.N.Y. 1994) (quoting People v. Shelton, 385 N.Y.S.2d 708, 717 (1976)).
While "[a]n action influenced by an extreme emotional disturbance is not one that is necessarily . . . spontaneously undertaken," People v. Patterson, 39 N.Y.2d 288, 303 (1976), consideration is given to whether the actor "is able to reflect dispassionately, the time interval between the provocation and the act and whether the intensity of these feelings are such that his usual intellectual controls fail and the normal rational thinking for that individual no longer prevail at the time of the act." Shelton, 385 N.Y.S.2d at 717-18; see also People v. White, 581 N.Y.S.2d 651, 652-53 (1992) (explaining that defendant must prove "that the conduct was influenced by an extreme emotional disturbance at the time the alleged crime was committed." (emphasis added)); Hurd v. Stinson, 2000 WL 567014, at *5 (S.D.N.Y. May 10, 2000) ("[T]he . . . defense typically has to do with a discrete, temporary lapse of reason at or near the time the crime was committed.").
Accordingly, New York courts have consistently rejected the defense where "the evidence established that the killing of the victim was a carefully planned and premeditated assassination, during which defendant was in full command of his faculties and showed no loss of self-control." People v. Medina, 749 N.Y.S.2d 712, 713 (1st Dep't 2002); see also People v. Watson, 548 N.Y.S.2d 356, 357 (2d Dept. 1989) (concluding that extreme emotional disturbance defense "would not have been appropriate in this case as the defendant's calculated and premeditated quest for revenge, motivated by fear and anger, is not equivalent to the loss of control generally associated with the affirmative defense"), see also Lombard v. Mazzuca, 2003 WL 22900918, at *11 (E.D.N.Y. Dec. 8, 2003) ("An argument that [petitioner] was acting under an extreme emotional disturbance would have been . . . unavailing, as evidence at trial established that the crime was carefully calculated.").
Soto relies on his audiotaped statement that, when he learned that his wife might leave him, "I didn't know what to do. I went just crazy," and on an affidavit from a psychiatrist who, based on review of the record ten years after the fact, posts that Soto probably suffered from extreme emotional disturbance at the time he contracted for Valverde's murder. But even if Soto's statement and the psychiatrist's affidavit were sufficient to show that Soto suffered some emotional disturbance when he learned that his wife might leave him, he cannot rely on them to explain his subsequent conduct over the following week: as the state court found in ruling on Soto's second 440.10 motion, "the evidence established the murder was carefully planned, a premeditated assassination, during which [Soto] was in full command of his facilities and showed no loss of self control." Under AEDPA, these factual determinations are presumed to be correct, and Soto has not met his burden of rebutting this presumption by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Based on these determinations, the 440.10 courts did not unreasonably apply Strickland when they concluded that Soto was not prejudiced by Eversoff's decision not to inform him of or pursue the extreme emotional disturbance defense.
Because the Court concludes that the defense of extreme emotional disturbance would have been unavailing and, thus, that Soto was not prejudiced by Eversoff's decision not to pursue that defense, it need not reach Soto's allegations that Eversoff's decision was motivated by the circumstances of Eversoff's divorce.
2. Perjury
Soto argues that Eversoff was ineffective for allegedly urging him to commit perjury. This allegation, if true, would represent a reprehensible ethical breach by Eversoff. Nonetheless, courts faced with similar claims have not analyzed them under Strickland, but have simply refused to hold that the presentation of perjured testimony by the defendant is adequate to constitute ineffective assistance of counsel. See Brewer v. Aiken, 935 F.2d 850, 859-60 (7th Cir. 1991) ("The purpose of the rule against presenting false evidence is to protect the integrity of the truth-finding function of courts rather than the rights of the defendant. The rule protects the public from allowing defendants to subvert the criminal justice system through fabricating evidence. . . . It would be absurd to create a rule allowing a defendant to go free if perjured testimony succeeds while at the same time providing for a new trial if the witness is a poor liar."); Monegro v. Grenier, 2004 WL 187129, at * 6 (S.D.N.Y. Jan. 28,2004) ("Even if petitioner did commit perjury on his counsel's advice, we would decline to create a rule that such misconduct amounts to a ground for reversing a conviction"); People v. Hagood, 737 N.Y.S.2d 611, 612 (1st Dep't 2002) (noting, in rejecting ineffective assistance claim, that "it is defendant who is ultimately to blame for giving perjured testimony at trial"); People v. Avery, 513 N.Y.S.2d 883, 887 (3rd Dep't 1987) ("Having knowingly and willingly participated in an attempt to obstruct justice through perjured testimony, [defendant] is not in a position to ask this court to undo the consequences of his own conscious wrongdoing on the ground that he was encouraged in this attempt by his defense attorney.").
In ruling on Soto's second 440.10 motion, the state court reached this same conclusion, explaining that "having knowingly and willingly participated in an attempt to obstruct justice through perjured testimony, defendant is not in a position to undo the consequences of his wrongdoing on the ground that he was encouraged to do so by his attorney." The Court agrees.
3. Suppression of Inculpatory Statements
At the Huntley hearing, Eversoff moved to suppress of Soto's written statements taken by Coleman, arguing that Coleman did not Mirandize Soto, that none of the detectives recorded in writing that they had given Soto a Miranda warning, and that there were inconsistencies in the detectives' testimony about precisely when and for how long their interviews with Soto occurred, thus undermining their credibility. The Huntley court denied the motion, concluding, based on the testimony of the three detectives, that Soto had received his Miranda rights prior to any custodial interrogation. Eversoff also moved, although unsuccessfully, to suppress Soto's audiotaped statement, arguing forcefully that it was coerced.
Soto contends that Eversoff should have raised additional arguments in his efforts to have Soto's written and audiotaped statements suppressed. In particular, Soto alleges that he told Eversoff that (1) before he went to the precinct house, the officers offered him leniency if he confessed, and (2) after he gave his written statements, but prior to his audiotaped statement, in the presence of the detectives and Assistant District Attorney Cohen he called his wife and asked her to obtain an attorney. Soto asserts that Eversoff should have included these facts in his argument that Soto's statements were coerced and, furthermore, that he should have argued that Soto's audiotaped statement was taken in violation of his right to counsel.
In his statement of facts, Soto notes that Eversoff "never put him on the stand at the Huntley hearing." Declaration of Andrea Hirsch at 25. Soto does not, however, press the argument that Eversoff was ineffective for not having him testify at the Huntley hearing. Such an argument would be unavailing: "the decision whether to testify belongs to the defendant and may not be made for him by defense counsel," Brown v. Artuz, 124 F.3d 73, 78 (2d Cir. 1997), and Soto has presented no evidence that Eversoff failed to inform him of his right to testify or overrode his desire to testify. See id. at 80 (explaining that "if defense counsel refused to accept the defendant's decision to testify and would not call him to the stand, counsel would have acted unethically").
As the Second Circuit has noted, a criminal defendant's "testimony after the fact suffers from obvious credibility problems." Panuccio, 927 F.2d at 109 (quotation omitted). Nonetheless, even if these facts are true and Soto informed Eversoff of them, the Court cannot conclude that Eversoff's representation was ineffective.
Under the first Strickland prong, counsel need not pursue every possible argument, and may make reasonable decisions about which arguments present the strongest chance of success. See Clark v. Stinson, 214 F.3d 315, 322 (2d Cir. 2000) ("[C]ounsel does not have a duty to advance every nonfrivolous argument that could be made"); Jones v. Barnes, 463 U.S. 745, 754 (1983) ("For judges to second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every `colorable' claim . . . would disserve the very goal of vigorous and effective advocacy").
a. Leniency
Assuming that Soto told Eversoff about the supposed offer of leniency, it would not have been unreasonable for Eversoff to decide not to pursue that argument, in addition to the arguments he made, because it was not viable: "[a] confession is not involuntary merely because the suspect was promised leniency if he cooperated with law enforcement officials." United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995).
b. Right to Counsel
With respect to Soto's argument that his audiotaped statement was taken in violation of his right to counsel, assuming that Soto called his wife and asked her to obtain an attorney for him, that the detectives and Assistant District Attorney Cohen overheard this conversation, and that Soto relayed these facts to Eversoff, it would not have been unreasonable for Eversoff to decide not to argue that Soto's right to counsel was violated because such an argument was not viable.
While it is true that "if the suspect invokes the right to counsel at any time, the police must immediately cease questioning him until an attorney is present," Davis v. United States, 512 U.S. 452, 462 (1994), an invocation of the right to have counsel present during questioning must be unambiguous and unequivocal. See id. at 459 (explaining that if a request for counsel "is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel," the officer is not required to suspend questioning until counsel is present (emphasis in original)). Since Soto had already given two written statements, if the officers indeed overheard Soto asking his wife to obtain an attorney, they could reasonably have concluded that Soto's request merely reflected his recognition that, having just confessed, he would need legal representation. At most, a reasonable officer in these circumstances would have understood only that Soto might be invoking the right not be questioned without counsel present, which is insufficient under Davis to require the suspension of questioning.
Based on the foregoing, the second 440.10 court's conclusion that "the fact that [Eversoff] may have made additional arguments for suppression does not establish ineffective assistance of counsel" was not an unreasonable application of Strickland.