Opinion
02-CV-2301 (JBW), 03-MISC-0066 (JBW).
March 14, 2005
MEMORANDUM, ORDER and JUDGMENT
I. Introduction
A. Federal Proceedings
This petition for a writ of habeas corpus was filed on April 15, 2002. In November 2002 a judge of this court granted petitioner's request for a 90 day extension to file a traverse to respondent's opposition with the note that "no further extensions will be considered." The case was reassigned to the undersigned in April of 2003. On August 1, 2003, petitioner's motion to stay proceedings so he could exhaust state claims was granted. On January 6, 2005, petitioner (sometimes referred to as "defendant") moved to lift the stay and to amend the petition. The motion was granted. On January 25, 2005, a letter dated January 4, 2005 from counsel for petitioner was submitted clarifying the grounds for the petition and in its support.
An evidentiary hearing, with petitioner present by telephone, was held on March 10, 2005 in this court. Petitioner was represented by counsel.
B. State Proceedings
The evidence supports the following statement.
On May 17, 1998, Raheam Gilley was returning to his car, parked on Grafton Street between Pitkin and Sutter Avenues, in Brooklyn. There he was surrounded by several men, including defendant and Lamar Suber. The men badgered Gilley to sell them some clothing that he had in his trunk. When Gilley refused, Suber grabbed him, took out a machine gun, and shoved it against the victim's head. Gilley, trying to escape, was punched by petitioner. After falling to the ground, he was kicked and stomped on by all the attackers. Suber threatened Debbie Gilley, Raheam's wife, who was inside the car. It was she who opened the trunk to the car. The men, including defendant and Suber, removed boxes of Gilley's merchandise, and walked off with them. Raheam Gilley identified Suber in a file of photos. In a subsequent lineup, Raheam and Debbie Gilley identified defendant. Both Suber and defendant were arrested. Defendant was on parole at the time of his arrest.
On May 17, 1998, defendant and Suber were charged, under Kings County Indictment Number 5269/98, with Robbery in the First Degree (N.Y. Penal Law § 160.15), two counts of Robbery in the Second Degree (N.Y. Penal Law § 160.10.[1], [2] [a]), Robbery in the Third Degree (N.Y. Penal Law § 160.05), Assault in the Second Degree (N.Y. Penal Law § 120.05), Petit Larceny (N.Y. Penal Law § 155.15), Assault in the Third Degree (N.Y. Penal Law § 120.00), and two counts of Menacing in the Second Degree (N.Y. Penal Law § 120.14).
A third perpetrator who had participated in the assault and taken clothing from the trunk was arrested on the day of the crime. He was charged under the same indictment, pled guilty to each charge in the indictment, and was adjudicated a Youthful Offender.
On October 28, 1998, following a jury trial in the New York Supreme Court, Kings County, defendant was convicted of Robbery in the First Degree (N.Y. Penal Law § 160.15). During jury deliberations, the trial court was informed that a circumstance had arisen concerning a family member of a juror which might render that juror unable to continue deliberating. The court summoned the jury and ascertained that it had reached a verdict as to defendant, although not as to Suber. The court declared a mistrial as to Suber (who was later convicted). On November 23, 1998, the court sentenced defendant, as a persistent violent felony offender, to a prison term of twenty years to life.
Defendant appealed from his judgment of conviction to the New York Appellate Division. In his brief, he claimed that the trial court had improperly inquired into whether the jury had reached a verdict, after which the court improperly took a partial verdict of guilty as to defendant.
By memorandum decision and order dated October 23, 2000, the Appellate Division unanimously affirmed defendant's judgment of conviction. People v. Spears, 276 A.D.2d 725, 715 N.Y.S. 2d 640 (2d Dep't 2000). The Appellate Division held that the trial court had not erred when it accepted the partial verdict because nothing prevented a trial court from inquiring into whether a jury, after a substantial period of deliberation, had agreed upon a verdict as to any of the defendants, and then accepting that verdict. People v. Spears, 276 A.D.2d at 725, 715 N.Y.S. 2d at 640.
The Appellate Division did not decide an Allen charge claim. The petitioner raises it now as a freestanding claim, rather than through a claim of ineffective assistance of counsel. See Part XIII, D, infra.
By letter dated October 30, 2000, defendant applied to the New York Court of Appeals for permission to appeal from the Appellate Division's affirmance. A certificate dated January 30, 2001 denied permission. People v. Spears, 96 N.Y.2d 739, 722 N.Y.S.2d 806 (2001).
On May 30, 2003, defendant moved in the New York Supreme Court to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. Defendant claimed that his trial counsel had been ineffective for failing (1) to object to the court's charge concerning accomplice liability; (2) to object to the court's Allen charge; and (3) to impeach the victim with statements that he made at defendant's parole hearing. Defendant also claimed that the prosecutor had improperly withheld Brady material, in the form of statements made by a codefendant. By letter dated July 18, 2003, defendant withdrew those parts of his ineffective assistance of counsel claim which concerned the court's charge on accomplice liability and the Allen charge. Defendant also withdrew his Brady claim.
In a decision and order dated September 10, 2003, the New York Supreme Court denied defendant's motion. It held that, viewed under the totality of the circumstances, defendant had been provided with meaningful representation and that counsel had used reasonable trial strategy. With regard to defendant's claim that his trial counsel had been ineffective for failing to attempt to impeach the victim with the statements that he made at defendant's parole violation hearing, the court held that counsel's decision was sound because the potential for prejudice outweighed any possible benefit. See Decision and Order of New York Supreme Court dated Sept. 10, 2003, at 2. The court concluded that, in any event, counsel had attempted to impeach the victim in various more appropriate ways including using prior inconsistent statements. See id. By decision and order dated December 12, 2003, a justice of the Appellate Division denied defendant's application for leave to appeal from the New York Supreme Court's denial of his motion.
On April 1, 2004, defendant petitioned the Appellate Division for a writ of error coram nobis. He claimed that his appellate attorney had been ineffective because counsel failed to claim on appeal that trial counsel had been ineffective in neglecting: (1) to use the victim's statements which were made at defendant's parole hearing for impeachment purposes; (2) to object to the trial court's charge on accomplice liability; and (3) to object to the trial court's allegedly coercive Allen charge.
By memorandum decision and order dated November 8, 2004, the Appellate Division, citing Jones v. Barnes, 463 U.S. 745 (1983), denied defendant's petition for a writ of error coram nobis. People v. Spears, 8 A.D.3d 506, 778 N.Y.S.2d 284 (2d Dep't 2004). By order dated November 8, 2004, a judge of the New York Court of Appeals denied defendant's application for leave to appeal. People v. Spears, 2004 N.Y. LEXIS 4110 (N.Y. Ct. of App. Nov. 8, 2004).
C. Claims in Federal Court
In his petition, defendant claimed that (1) the conviction of defendant, and not his co-defendant, constituted a repugnant verdict; (2) the court improperly took a partial verdict; and (3) the trial court improperly charged the jury regarding deliberations. See Petition dated April 13, 2002, at 5-6. The amended petition expands slightly on these contentions. See discussion in Part XIII, infra.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment 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) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, 341 F.3d 104 (2d Cir. 2003) (remanding district court's habeas decision that relied on precedent from the Court of Appeals for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, 340 F.3d 63 (2d Cir. 2003). Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
III. Limitations Period
Congress has set a one-year period of limitations for the filing of an application for a writ of habeas corpus by a person in custody pursuant to a state court judgment. See 28 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the Supreme Court "affirms a conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the [the ninety-day period] for filing a certiorari petition has expired." Clay v. United States, 123 S. Ct. 1072, 1075 (2003) (discussing finality in context of federal conviction but noting also that "the Courts of Appeals have uniformly interpreted 'direct review' in § 2244(d)(1)(A) to encompass review of a state conviction by [the Supreme Court]"); see also Sup. Ct. R. 13.
Prisoners whose convictions became final before the effective date of AEDPA, April 24, 1996, had a grace period of one year, until April 24, 1997, to file their habeas application. See Ross v. Artuz, 150 F.3d 97, 103 (2d Cir. 1998).
"[T]he district court has the authority to raise a petitioner's apparent failure to comply with the AEDPA statute of limitation on its own motion." Acosta v. Artuz, 221 F.3d 117, 121 (2d Cir. 2000). "If the court chooses to raise sua sponte the affirmative defense of failure to comply with the AEDPA statute of limitation, however, the court must provide the petitioner with notice and an opportunity to be heard before dismissing on such ground." Id.
In calculating the one-year limitation period, the "time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted. . . ." 28 U.S.C. § 2244(d)(2). The "filing of creative, unrecognized motions for leave to appeal" does not toll the statute of limitations. Adeline v. Stinson, 206 F.3d 249, 253 (2d Cir. 2000); see also Artuz v. Bennett, 531 U.S. 4, 8 (2000) ("[A]n application is ' properly filed' when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee. . . . The question whether an application has been 'properly filed' is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar." (emphasis in original; footnote omitted)).
The term "pending" in the statute has been construed broadly to encompass all the time during which a state prisoner attempts, through proper use of state procedures, to exhaust state court remedies with regard to a particular post-conviction application. See Bennett v. Artuz, 199 F.3d 116, 120 (2d Cir. 1999), aff'd, 531 U.S. 4 (2000). "[A] state-court petition is 'pending' from the time it is first filed until finally disposed of and further appellate review is unavailable under the particular state's procedures." Bennett, 199 F.3d at 120; Carey v. Saffold, 536 U.S. 214 (2002) (holding that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F.Supp. 2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self-serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations").
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an 'application for State post-conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in 'rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with 'reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances 'beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of 'extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, 338 F.3d 145, 153-54 (2d Cir. 2003); compare Smaldone, 273 F.3d at 138-39 (attorney calculation error does not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the Court of Appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
In the instant case respondent does not raise a statute of limitations defense. The petition was timely, the amendments relate back to the original claims and tolling while state claims were being exhausted was appropriate. Petitioner proceeded expeditiously.
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court "both the factual and legal premises of the claim he asserts in federal court." Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims — so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state."). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
Petitioner has exhausted all his claims. Even if they were not exhausted this court would rule on them since they lack merit.
V. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750. In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(1) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)). State procedural rules are insufficient to bar federal review of a claim if the rules are not strictly or regularly followed, see Barr v. City of Columbia, 378 U.S. 146, 149 (1964), are novel and unforeseeable, see NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457 (1958), allow noncompliance, see Sullivan v. Little Hunting Park, Inc., 396 U.S. 229, 233-34 (1969), or impose undue burdens on the assertion of federal rights, see Douglas v. Alabama, 380 U.S. 415, 422-23 (1965). See generally Kermit Roosevelt III, Light from Dead Stars: The Procedural Adequate and Independent State Ground Reconsidered, 103 Colum. L.Rev. 1888 (2003) (addressing origins of the doctrine).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as 'the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id.
All claims raised by petitioner have been considered on their merits. They have been found unsustainable. The fact that the Appellate Division did not discuss the Allen charge in its decisions, while affecting the applicable standard of review, has no bearing on the outcome of the case. See Part XIII, D, infra.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id. at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id. at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free-standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding."). A habeas court is, in short, concerned "'not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
There can be, and has been, no claim of actual innocence in the instant case.
VII. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defense." U.S. Const. amend. VI. This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose — "to ensure a fair trial" — and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. 510 (2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696. "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others. See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
As indicated in part XIII, infra, counsel at the trial and appellate level furnished competent assistance to petitioner.
VIII. Errors of State Law
Federal habeas corpus relief does not lie for mere errors of state law. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Nonetheless, the Due Process Clause requires that state courts conducting criminal trials "proceed consistently with 'that fundamental fairness' which is 'essential to the very concept of justice.'" Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir. 1998) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)). Errors of state law that rise to the level of a constitutional violation may be corrected by a habeas court, but even an error of constitutional dimensions will merit habeas corpus relief only if it had a "'substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quotation omitted).
There was, in any event, no error of state law in the charge. See Part XIII, infra.
IX. Evidentiary Error
For a habeas petitioner to prevail on a claim that an evidentiary error amounted to a deprivation of due process, he must show that the error was so pervasive as to have denied him a fundamentally fair trial. United States v. Agurs, 427 U.S. 97, 108 (1976). The standard is "whether the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it. In short it must have been 'crucial, critical, highly significant.'" Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985) (quoting Nettles v. Wainwright, 677 F.2d 410, 414-15 (5th Cir. 1982). This test applies post-AEDPA. See Wade v. Mantello, No. 02-2359, slip op. at 13 (2d Cir. June 13, 2003).
No evidentiary error of any substance is claimed or was made.
X. Insufficiency of the Evidence
To the degree a petitioner claims that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree a petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
Proof beyond a reasonable doubt would have been found to have been established on the strong evidence presented. As indicated in Part XIII, infra, the only issue on this point raised by petitioner was whether there was proof that his codefendant possessed and used a gun. There was ample evidence of this fact.
XI. Legal Claims Frequently Raised in Habeas Corpus Applications
For an explication of the law concerning other claims that are frequently raised before this court in applications for a writ of habeas corpus, see Waters v. McGuiness, 99-CV-0615, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) ( Sandoval claims); Thomas v. Kuhlman, 255 F. Supp. 2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) ( Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12, 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp. 2d 212, 266-67 (E.D.N.Y. 2003) (right to self-representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing).
The court has examined the record and found that none of such claims were supported by the record except those dismissed in Part XIII, infra.
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
Arguably, a coercive Allen charge is "structural" since it has the effect of denying a jury trial, and therefore harmless error analysis does not apply. Cf. Benn v. Greiner, No. 04-0527, 2005 WL 545025, at *4 (2d Cir. Mar. 9, 2005). In the instant case, there was no coercive Allen charge so that the court does not have to consider the harmless error issues. See Part XIII, D, infra.
XIII. Analysis of Claims
A.
Defendant raised his claim that trial counsel was ineffective for failing to impeach one of his victims in his state court motion to vacate judgment. As already noted, in its decision and order denying defendant's motion, dated September 10, 2003, the state court held that "under the totality of the circumstances, defendant had been provided with meaningful representation." Decision and Order of the New York Supreme Court, dated Sept. 10, 2003, at 2. The court ruled that "[trial] counsel's decision not to impeach was sound since the potential for prejudice outweighed any possible benefit." Id. The court further noted that "counsel did attempt to impeach the victim in various ways including using prior inconsistent statements." Id.
Defendant raised his claim that appellate counsel was ineffective for failing to argue that trial counsel was ineffective for failing to impeach Gilley and object to the accomplice liability charge in state court in a petition for writ of error coram nobis. By decision and order, dated June 14, 2004, the New York Appellate Division, citing a United States Supreme Court case, Jones v. Barnes, 463 U.S. 745 (1984), denied defendant's petition, finding that defendant had failed to establish that he had been denied the effective assistance of appellate counsel. People v. Spears, 8 A.D.3d 506, 778 N.Y.S. 2d 284 (2d Dep't 2004).
Under 28 U.S.C. § 2254(d)(1), as amended by the Antiterrorism and Effective Death Penalty Act of 1996, a habeas petition shall not be granted based on a claim that was "adjudicated on the merits" in a state court proceeding unless the adjudication of the claim "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)(1).
In the instant case, the New York Supreme Court denied defendant's claim that trial counsel was ineffective for failing to attempt to impeach Gilley, and the New York Appellate Division denied defendant's claim that appellate counsel was ineffective for failing to challenge trial counsel's failure to impeach Gilley and trial counsel's failure to object to the accomplice liability charge. These decisions were made on the merits. Hence, on habeas review, the deferential standard of 8 U.S.C. § 2254(d)(1) applies to defendant's claim. See Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001). Moreover, this court "is limited to determining whether the state court unreasonably applied Strickland." Loliscio v. Goord, 263 F.3d 178, 192-93 (2d Cir. 2001) (citation omitted). A state court decision is an "unreasonable application of' Supreme Court precedent if, from an objective standpoint, the state court applied the law unreasonably, not simply incorrectly or erroneously. Williams v. Taylor, 529 U.S. 362, 411 (2000). In this case, defendant received effective trial and appellate representation on this issue and the rejection of defendant's claim of ineffective representation by the New York Supreme Court and the Appellate Division did not constitute unreasonable applications of the Strickland standard.
Trial counsel pursued a reasonable trial strategy, logically attempting to disprove an element of the charged crime. Prior to trial, counsel moved to sever the cases of defendant and co-defendant Suber (112-14). Counsel successfully moved to redact defendant's nickname from a statement made by co-defendant Suber (113-18), and successfully moved to preclude the prosecutor from eliciting the fact that defendant's prior convictions were for robbery, in the event that the jury was made aware of these prior convictions (134-38). Counsel delivered a brief but to-the-point opening statement, and raised appropriate objections during the prosecutor's questioning of witnesses throughout the trial. During cross-examination, counsel attempted to impeach Gilley in various ways, including an attempt to bring to light prior inconsistent statements. Prior to summations, counsel moved to dismiss the indictment on the basis of insufficient evidence. Counsel delivered a summation, in which he forcefully argued his central point — that the evidence did not prove beyond a reasonable doubt that defendant was one of the attackers. Thus, defendant received meaningful representation.
Petitioner's claims that trial counsel was ineffective because he failed to impeach Gilley through prior inconsistent statements made at the time of defendant's parole violation hearing is meritless. Counsel's decision not to question Gilley about his parole hearing testimony was a reasonable strategy. Such questioning might have informed the jury that defendant had been on parole at the time of the offense. Therefore, any benefit to be gained by eliciting the alleged inconsistencies between the parole hearing testimony and the trial testimony was outweighed by the potential prejudice of the jury learning about defendant's parole status.
Although defendant argues that Gilley's sworn testimony at the parole hearing contained many statements inconsistent with his trial testimony, defendant does not show how any statements from the parole hearing are meaningfully inconsistent with statements at trial. The minutes of the parole hearing are meaningfully inconsistent with statements at trial. The minutes of the parole hearing indicate that any alleged inconsistencies are either non-existent or inconsequential. Contrary to defendant's argument, in the parole hearing Gilley did not say that at the time in question he was going to buy merchandise. At trial, Gilley testified that he was in the neighborhood to collect a debt from a customer, and to show that customer a jacket that he had ordered (538). Defendant does not specify how this is inconsistent with the parole hearing testimony. The parole hearing minutes show no inconsistency.
Defendant also claims that Gilley's trial testimony was inconsistent with his parole hearing testimony that immediately after the robbery he had proceeded to the precinct rather than flagging down a police car. Gilley's testimony at the parole hearing is as follows:
PAROLE OFFICER: You indicated they ran off, what did you do then?
GILLEY: I gathered myself and went straight to the police precinct.
At trial, Gilley testified that immediately following the attack on May 17, 1998, he saw a police officer around the corner from the scene of the robbery. Gilley told this police officer what had happened, and described the group of men that had accosted him. Gilley then entered the officer's car, and they drove around for approximately fifteen minutes looking for the attackers. The men were not found, and the police officer then brought Gilley to the precinct to view photographs. Gilley's identification of co-defendant Suber from these photographs later led to the arrests of both Suber and defendant.
Before trial, Gilley also testified before the grand jury. There he described his actions immediately following the incident in the same way as he did at the parole hearing. Gilley's statement at the parole hearing and his statements before the grand jury were both arguably inconsistent with his testimony at trial. Defense counsel brought this inconsistency to the jury's attention:
COUNSEL: So what you're saying is that you saw the police officer, you got into the car, you drove around about fifteen minutes canvassing the area with them or looking for these people and then you went to the precinct?
GILLEY: Yes.
COUNSEL: So when you told the grand jury that you got into the car and drove straight to the precinct, that was incorrect. Right?
GILLEY: That was a mistake.
(622). Thus, trial counsel did attempt to impeach Gilley with his allegedly inconsistent statements about having proceeded to the precinct rather than having flagged down a policed car. This part of defendant's claim is meritless.
Defendant also claims that Gilley made an inconsistent statement concerning his injuries.
On direct examination at trial, Gilley testified as follows:
THE PROSECUTOR: Okay now, after you got hit, can you describe for the jury what, if any, injuries you suffered?
GILLEY: For the period of time, my jaw was swollen and my knee was messed up.
PROSECUTOR: What was he reason that you jaw hurt?
* * *
GILLEY: Because I was struck in my face.
PROSECUTOR: And what was it that caused the injury to your knee?
GILLEY: I guess when I got slammed on the ground.
(563). At the parole hearing, Gilley testified as follows:
PAROLE OFFICER: Did you sustain any injuries?
GILLEY: My knee is still messed up.
PAROLE OFFICER: What does that mean, messed up?
GILLEY: It feels like a strain, you know. When I bend or put it straight.
PAROLE OFFICER: Did you sustain other injuries?
GILLEY: No.
(PH.7).
There are reasonable explanations for Gilley's failure to mention his injured jaw at the parole hearing. When the parole officer used the word "sustain," Gilley might have understood the question to refer to injuries from which he still suffered from at the time of the parole hearing, one month after the attack, rather than "for the period of time" immediately following the attack. Or, perhaps he did not consider a swelling or bruise on the face to be an "injury," in the same way in which his knee was injured. Thus, trial counsel could have reasonably have believed that this minor inconsistency was simply due to a failure in communication, rather than to Gilley's dishonesty, and consequently that it was of little value for purposes of impeachment.
Even if this testimony is construed as inconsistent, the inconsistency is so insignificant that trial counsel was justified in declining to use it for impeachment purposes. Using this inconsistency would not have helped, and may have harmed, defendant's case. As already noted, the strategy defendant suggests here might have caused the jury to learn that defendant had been on parole at the time of the offense. By focusing on this testimony, counsel might have caused the jurors to dwell needlessly on the injuries defendant caused to Gilley. Counsel's failure to attempt to impeach Gilley with his parole testimony was not error.
Trial counsel provided valuable testimony at a hearing held before this court on March 10, 2005. He explained that he would not have used the parole hearing transcript precisely because it would have dwelled on the injuries sustained by the victim and because the inconsistencies could easily be attributed by the jury to confusion, forgetfulness, or mistake. Trial counsel's explanations were thorough and forthright, he appeared extremely competent, and the court credits his testimony completely.
The way in which trial counsel actually attempted to attack Gilley's credibility appeared to be more thorough and effective than the way now suggested by defendant. As part of a general strategy to cast doubt on Gilley's identification of defendant at the lineup, counsel attempted to call into question Gilley's ability to perceive events at the time of the incident, and his ability to describe the attackers accurately to the police. Counsel brought to light inconsistent statements by Gilley about the number of assailants (609-10), and about whether he had seen the attackers previously (600). Furthermore, counsel attempted to impeach Gilley by questioning him about his criminal record (624-28), and by eliciting testimony that Gilley did not pay taxes on his profits from selling clothing, while his wife was collecting welfare benefits (626-27). This defense tactic constituted a reasonable attempt to impeach the complaining witness.
B.
Appellate counsel was not ineffective in failing to argue that trial counsel was ineffective because trial counsel did not object to the charge on accomplice liability. Defendant argues that the court's instruction was incorrect because the evidence showed that only Suber, and not defendant, wielded a weapon during the robbery. According to defendant, the jury could only have found defendant guilty of first-degree robbery where it found that Suber possessed the elemental weapon. Defendant asserts that the trial court's instruction was incorrect because it relieved the prosecution of having to prove beyond a reasonable doubt that Suber had possessed the elemental weapon so as to convict defendant, and trial counsel was deficient in failing to object to that charge. This claim is meritless.
Robbery in the First Degree (N.Y. Penal Law § 160.15) is defined as a forcible taking of property in which a defendant or another participant in the crime displayed what appeared to be a pistol, revolver, rifle, shotgun, machine gun or other firearm in the course of the commission of the robbery (720-21). The trial court instructed the jury that in order to find defendant guilty of first-degree robbery it had to find that the prosecution had proved beyond a reasonable doubt that defendant or another participant in the crime had displayed a firearm during the commission of the crime (721-22).
The trial court — both in its charge to the jury, and, after receiving a jury note during deliberations — defined the legal term "acting in concert" (709-11, 732-34). Since the indictment charged that defendant and Suber had acted in concert, this instruction was appropriate. Defendant's claim that the instruction relieved the prosecution from having to prove beyond a reasonable doubt that Suber had possessed a weapon is not persuasive. New York Penal Law Section 160.15(4) requires proof that one of the actors displayed a firearm in the course of the commission of the robbery. The trial court correctly instructed the jury that defendant could be held liable if any of the robbers displayed a firearm and if defendant possessed the requisite mental culpability. That the evidence showed that one particular robber rather than another possessed the gun is of no moment.
Trial counsel cannot be deemed deficient for failing to object to what was a correct charge given by the court on acting in concert. Trial counsel testified to precisely this point in the March 10, 2005 hearing, stating, "You don't object to a charge that's correct." Hence, the Appellate Division's decision that appellate counsel's failure to challenge trial counsel on this ground was not ineffective, is not unreasonable of Strickland. Thus, defendant is not entitled to habeas relief on this ground. See 28 U.S.C. 2254 (d)(I).
C.
Defendant claims that trial counsel was ineffective for failing to object to the accomplice liability charge. The failure to object to the trial court's accomplice liability charge did not constitute ineffectiveness because the charge was correct. In charging the jury on the count of Robbery in the First Degree (N.Y. Penal Law § 160.15), the court correctly instructed the jury that defendant could be held liable if any of the robbers displayed a firearm and if defendant displayed the requisite mental culpability. Trial counsel could have not been deemed ineffective for failing to object to what was a correct instruction by the trial court. Defendant's claims of ineffective assistance of trial and appellate counsel do not merit habeas review.
This claim is procedurally barred from federal habeas review because it concerns a matter of record, which could only have been raised on direct appeal, and there is no state court to which defendant may now bring this claim. Where a defendant no longer has a forum to present a constitutional claim, a federal court will deny the claim as if the defendant had brought the claim before a state court and the state court had decided that the claim was barred under New York state procedural rules. See Harris v. Reed, 489 U.S. 255, 263 n. 9 (1989); St. Helen v. Senkowski, 374 F.3d 181, 183-84 (2d Cir. 2004); Grey v. Hoke, 933 F2d 117, 121 (2d Cir. 1991). Defendant argues that this procedural bar should be excused because appellate counsel did not challenge trial counsel's failure to object to the accomplice liability charge. This argument is unavailing because trial counsel was not ineffective in this regard.
D.
The trial court's handling of the jury after deliberations began was arguably appropriate. See Transcript 926-936 and 738 on specific law questions, 736-737 on the " Allen" charge, 740-743 on a juror emergency, 744-747 on taking of a verdict against petitioner, and declaration of a mistrial against petitioner's co-defendant, 747-750.
At the March 10, 2005 evidentiary hearing in this court, state trial counsel was sworn as a witness. He indicated his belief that the supplemental charge given to the jury was not an impermissible Allen charge. Trial counsel's testimony was straightforward and credible. He appeared to be an able and experienced litigator devoted to his client's interests. The trial strategy he articulated was sound. He testified that he and his co-counsel worked closely together and agreed on the issues raised in the present petition. Having objected to a portion of the first supplemental "Allen" charge provided to the jury after it declared that it was hung, both counsel were satisfied with the judge's modification. The petitioner nonetheless charges that the instruction given to the jury once it had indicated that it was unable to reach a verdict was coercive.
In Allen v. United States, 164 U.S. 492 (1896), the United States Supreme Court considered the question of a whether a supplemental charge to the jury constituted error. In Allen, the instructions were quite lengthy, but included a reference to "mere acquiescence" and "conscientiously." In substance, the charge informed the jury that,
in a large proportion of cases absolute certainty could not be expected; that, although the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows, yet they should examine the question submitted with candor, and with a proper regard and deference to the opinions of each other; that it was their duty to decide the case if they could conscientiously do so; that they should listen, with a disposition to be convinced, to each other's arguments; that, if much the larger number were for conviction, a dissenting juror should consider whether his doubt was a reasonable one which made no impression upon the minds of so many men, equally honest, equally intelligent with himself. If [on] the other hand, the majority were for acquittal, the minority ought to ask themselves whether they might not reasonably doubt the correctness of a judgment which was not concurred in by the majority.Id. at 501 (emphasis added).
The Supreme Court noted that the "very object of the jury system is to secure unanimity by a comparison of views," and that, as a result, "[t]here was no error in these instructions." Id. As already noted, importantly for purposes of the instant case, the instructions in Allen included statements that the verdict must be the verdict of each individual juror, "and not a mere acquiescence in the conclusion of his fellows," and that "it was their duty to decide the case if they could conscientiously do so." Id. (emphasis added). These statements served to remind jurors that a verdict was not required and that no juror should defy his conscience for the sake of rendering a verdict.
The Supreme Court has subsequently considered other cases to determine when Allen or modified Allen charges pass constitutional muster. In Jenkins v. United States, 380 U.S. 445 (1965) (per curiam), the Court found impermissible coercion on the following facts:
Slightly more than two hours after the jury retired to deliberate, the jury sent a note to the trial judge advising that it had been unable to agree upon a verdict "on both counts because of insufficient evidence." The judge thereupon recalled the jury to the courtroom and in the course of his response stated that " You have got to reach a decision in this case.". . . Upon review of the record, we conclude that in its context and under all the circumstances the judge's statement had the coercive effect attributed to it.Id. at 446 (emphasis added).
In Lowenfield v. Phelps, 484 U.S. 231 (1988), the leading case post- Allen, the Court considered whether a modified Allen charge was impermissibly coercive. The Court noted that such a review requires that the supplemental charge be considered "in its context and under all the circumstances." Id. at 237 (citing Jenkins v. United States, 380 U.S. at 446). The Court specifically observed:
Surely if the jury had returned from its deliberations after only one hour and informed the court that it had failed to achieve unanimity on the first ballot, the court would incontestably have had the authority to insist that they deliberate further. This is true even in capital cases such as this one and Allen. . . .Id. at 238. It also found significant that "the jury returned with its verdict soon after receiving the supplemental instruction, and . . . this suggests the possibility of coercion." Id. at 240 (citation omitted). The Court in Lowenfield ultimately concluded that the modified Allen charge was not coercive. The Lowenfield charge included the following language:
[D]o not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.Id. at 235 (emphasis added). Though the Court found that the instruction was not coercive, it reiterated that "[a]ny criminal defendant, being tried by a jury is entitled to the uncoerced verdict of that body." Id. at 241.
The Court of Appeals for the Second Circuit has expanded on the Supreme Court's analysis, holding that whether an Allen charge was appropriate in a given case hinges on whether it tended to coerce undecided jurors into reaching a verdict. This is clear in direct appeals from federal cases. See, e.g., United States v. Henry, 325 F.3d 93, 107 (2d Cir. 2003). The caselaw on collateral attacks from state convictions is consistent with Henry, but is more directly on point and only such cases are discussed below.
In the leading Court of Appeals case from this circuit involving a collateral attack on a state conviction and an Allen charge, the court declared, "Coercion may be found when jurors are encouraged to abandon, without any principled reason, doubts that any juror conscientiously holds as to a defendant's guilt." Smalls v. Batista, 191 F.3d 272, 279 (2d Cir. 1999) (citations omitted). "Accordingly, a necessary component of any Allen-type charge requires the trial judge to admonish the jurors not to surrender their own conscientiously held beliefs." Id. (emphasis added). The Court of Appeals thus made mandatory what the Supreme Court had indicated was at least desirable.
In Smalls, the Court of Appeals affirmed the grant of a writ of habeas corpus to a petitioner convicted in state court. The Smalls court arguably went beyond the holdings of the Supreme Court by creating an affirmative rule on the nature of the required instruction, holding:
In sharp contrast to the charge upheld in Lowenfield, the charge given at Smalls' trial failed to include instructions reminding jurors not to abandon their conscientiously held views, even if holding firm would leave a minority of jurors unconvinced. . . .
[T]he charge was rendered coercive not so much for what it contained but for what it failed to contain. The absence of cautionary language may well have left the minority juror with the belief that he or she had no other choice but to convince or surrender. We need not decide whether the charge given would have been coercive if it had included the requisite cautionary language. As given, the instant charge was improper and coercive because it failed to include that cautionary language. . . .191 F.3d at 280 (emphasis added). But see Campos v. Portuondo, 320 F.3d 185, 186 (2d Cir. 2003) (holding, in affirming denial of petition for a writ of habeas corpus following a state court conviction, that trial court's Allen charges were justified, where such charges "repeatedly assur[ed] the jury that it was not required to reach a verdict" but where no cautionary language of conscience appeared to be given). This court is bound by the rulings of the Court of Appeals for this circuit even if they might arguably not be fully consistent with AEDPA in going beyond Supreme Court explicit precedents. See Part II, supra.
The jury in the instant case was first charged as follows:
And now your fifth note. . . . "We have a hung jury on both defendants and don't think anything will help change our decision." The answer to that one is that you have just barely begun your deliberations. We spent a good deal of time in selecting the jury and hearing the testimony. Please give it your full attention. I have a very strong feeling that you should be able to reach a verdict. Are there any exceptions or additional requests to charge?
Tr. at 736 (emphasis added).
An "off-the-record" discussion then ensued, creating an issue as to the nature of the objection by counsel and what counsel wanted done. Going "off the record" in a criminal trial is always ill-advised. If something in the record should not be disclosed it can be sealed. Courts have warned against the practice. See, e.g., Yonanime v. Artuz, No. 97-CV-2517, 1999 WL 1487598, at *2 (E.D.N.Y. 1999) ("A suggestion from the Court of Appeals for the Second Circuit or the New York Court of Appeals that 'off the record' and in camera conferences are discouraged, might have a useful prophylactic effect.").
After the "off-the-record" conference, the trial court withdrew at least a portion of the supplemental instruction by stating:
Members of the jury, there has been an objection by counsel to my statement that a lot of time and money has been expended on this case. That shouldn't be part of your consideration. What you should consider is what the facts are with the idea, with an attempt to reach a verdict if that be possible. Based on the very few hours that you have deliberated, I tell you that it's far too premature at this point to send such a note. Please continue your deliberations with a view toward arriving at a verdict if that's possible.Id. at 736-37 (emphasis added). No objection was made to this corrective recharge.
In the context of all the facts and circumstances, this corrective language of the court reasonably could have been deemed noncoercive by every juror and therefore nonprejudicial. Early in its formal opening charge the court had clearly suggested that a person should hold to his or her opinion against the majority. It charged as follows:
When you enter the jury room to commence your deliberations, you will undoubtedly find various opinions and conclusions amongst yourselves. You've been selected as jurors in this case because of your fairmindedness, your intelligence and your experience and when you enter the jury room, you should make every effort to harmonize the various views expressed by the different jurors and make every effort to come to an agreement which would speak the truth as far as the facts in this particular case are concerned. I would like to suggest that your discussion under the circumstances should be dignified and unemotional, based upon the evidence as you understand it and the law as I have given it to you. No juror has a right to go into a jury room with a closed mind and refuse to listen to the opinions of other jurors and decline to discuss the evidence with his fellow jurors. You should always be open to reason and listen to the opinions of others in the room. However, you have a right — if you believe that you are right — to stick to your arguments and your conclusions. In other words you have a perfect right to stand up to your own strong opinions. What I'm saying is that you should not close your minds so as to pre-judge the conclusions to be arrived at without listening to the arguments advanced by your fellow jurors who, I am sure, are just as much interested in coming to an honest decision in this case as you are. What is the truth? This is the question for you to determine. A juror is not required to abandon common sense and good judgment when he or she enters the jury box. The jury box in the courtroom is the forum where common sense and good judgment should be displayed. You must be cool, calm, impartial and discriminating. You must not allow sympathy or prejudice to sway your minds in analyzing the testimony in order to arrive at the truth. Decide this case on the evidence and under the law as I have given it to you. Your verdict in this case must be unanimous. That is, all twelve of you must unanimously agree and your verdict will be announced through your foreperson. . . .
Tr. at 723-25 (emphasis added).
The particular facts and circumstances of the instant case indicate that the supplemental charge, as corrected, was not an impermissible Allen charge. The jury had only recently begun to deliberate when the judge provided its modified Allen charge, the jury remained unable to reach a verdict as to petitioner's co-defendant, and trial counsel for the two defendants reasonably did not find the corrected charge coercive. The conclusion that the charge was not coercive is supported by the testimony of trial counsel for petitioner, who agreed that once the judge provided a modified supplemental instruction, neither he nor co-counsel had any objection to it. The instant case is more like Campos than Smalls. In Campos, the trial court indicated a personal belief that the jury might reach a verdict in its final Allen charge to the jury, without any reference to individual conscience:
I don't intend to suggest to you that I believe the case can be resolved. I only believe that you can make an effort to resolve the case. I know you were very close last night, and that very fact alone has given me reason to hope that further efforts may be successful. If not, so be it. Just make an effort.320 F.3d at 186 (emphasis added). Decided after Smalls, the Court of Appeals nonetheless determined that the Appellate Division reasonably concluded that the charge was not coercive. Though Campos involved the application of AEDPA deference to a state court decision, the court is persuaded that its reasoning was sound, independent of such deference.
In the instant case, because the Appellate Division never reached the merits of the Allen charge claim, the deferential AEDPA standard does not apply. See, e.g., Miranda v. Bennett, 322 F.3d 171 (2d Cir. 2003); Sellan v. Kuhlman, 261 F.3d 303 (2001). The court's determination that the " Allen" charge given in this case was not coercive is based on a pre-AEDPA de novo standard of review, rather than the deferential post-AEDPA standard.
Petitioner has not demonstrated that he was prejudiced by the charge as amended. There was substantial evidence of guilt against petitioner, including identification by both of the victims. More telling, the jury maintained its no-verdict position with regard to co-defendant Suber, and a mistrial was eventually declared in his case (though, as already stated, he was subsequently convicted on the same charges).
The claim of an Allen charge violation is not supported.
E.
No other possible claim is more than frivolous.
Conclusion
The petition for a writ of habeas corpus is denied. A certificate of appeal is granted on the Allen charge issue. No other substantial constitutional claim is proffered. Petitioner may seek a further certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.