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upholding defendant's kidnapping conviction because "the evidence at trial established that Staton's commission of the robbery . . . was separate and apart from the acts that constituted the unlawful imprisonment."
Summary of this case from Ellis v. PhillipsOpinion
No. 01-cv-4352 (JG).
February 23, 2004
DARREN STATON, Elmira Correctional Facility, Elmira, NY, Petitioner Pro Se.
RICHARD A. BROWN, District Attorney, Queens County, Kew Gardens, New York, By: Johnette Traill, Assistant District Attorney Attorneys for Respondent.
MEMORANDUM AND ORDER
Darren Staton petitions for a writ of habeas corpus, challenging his convictions in state court arising out of his robbery and abduction of a cab driver. On January 30, 2004, I held oral argument, in which Staton participated by telephone conference. The petition is denied because it is both untimely and lacking in merit, as set forth below.
BACKGROUND
A. Facts
The People's evidence at trial established that, on June 12, 1993, cab driver Elliot Kersaint was driving his taxicab in Queens when he stopped to pick up a fare, Darren Staton. Soon after Staton climbed into the backseat and Kersaint began to drive, Staton held a pellet gun to Kersaint's neck and demanded money. Kersaint gave him about $100. Undeterred, Staton kept the gun at Kersaint's neck and demanded more money. Kersaint continued to drive. When the car was across the street from a police station, Kersaint crashed the car into a marked police car. Three police officers came outside, pursued Staton, and apprehended him several blocks from the precinct, where he was placed under arrest.
Staton was charged with robbery in the first degree, robbery in the second degree, unlawful imprisonment in the first degree, and criminal possession of a weapon in the fourth degree. After deliberations, the jury convicted him of unlawful imprisonment in the first degree and criminal possession of a weapon in the fourth degree. He was acquitted of the remaining offenses. On May 23, 1994, he was sentenced, as a persistent felony offender, to concurrent terms of from fifteen years to life imprisonment for the unlawful imprisonment conviction, and one year imprisonment for the weapon possession conviction.
Because this case turns on the procedural history — which is quite lengthy and detailed — I have provided it as well in a reference chart for the convenience of the reader. (See Appendix.)
In December of 1995, Staton, through counsel, filed a brief appealing his conviction to the Appellate Division. Appellate counsel claimed that Staton's conviction could not stand because: (a) New York's merger doctrine required the vacatur of his conviction for unlawful imprisonment, as the conduct constituting that offense was an inseparable part of the robbery charge and trial counsel's failure to so argue constituted ineffective assistance of counsel; (b) the prosecution failed to prove beyond a reasonable doubt that, in holding an inoperable pellet gun to the driver's head, he exposed the victim to a risk of serious physical injury; and (c) the sentencing court abused its discretion in sentencing him to fifteen years to life imprisonment upon his conviction of a non-violent class E felony. In a supplemental pro se submission, Staton argued that he received ineffective assistance of counsel because: (d) the trial court denied his motion to relieve counsel, and (e) the sentencing court misidentified him as having worn a t-shirt with the words "Fuck You" on it, and relied on that conduct to justify an excessive sentence.
On the latter ground, he also asserted that he was deprived of a fair trial.
On January 27, 1997, the Appellate Division rejected these arguments and affirmed Staton's conviction. People v. Staton, 653 N.Y.S.2d 866 (2d Dep't 1997). In relevant part, it held that "[t]he sentencing court acted within its discretion in adjudicating the defendant to be a persistent felony offender" and that "[t]he defendant's remaining contentions, including those in his supplemental pro se brief, are either unpreserved for appellate review or without merit." Id. at 867. On May 8, 1997, the New York Court of Appeals denied Staton's application for leave to appeal his conviction. People v. Staton, 89 N.Y.2d 1101 (1997).
On April 13, 1998, Staton filed his first petition for habeas corpus (the "First Petition"). He asserted that his conviction for unlawful imprisonment should be vacated under the merger doctrine and because the prosecution failed to prove beyond a reasonable doubt the risk of serious injury to the victim. On May 8, 1998, upon Staton's request, I dismissed the petition without prejudice.Staton v. Senkowski, No. 98-CV-3224 (May 8, 1998). Judgment in favor of respondent was entered on the docket on May 11, 1998.
The "prisoner mailbox rule" provides that the filing of a federal habeas petition by pro se incarcerated litigants is deemed to occur as of the date it is "given to a prison official for forwarding to the court clerk." Adeline v. Stinson, 206 F.3d 249, 251 (2d Cir. 2000) (citing Houston v. Lack, 487 U.S. 266, 276 (1988)).
Staton filed a second petition for habeas corpus on June 11, 1998 (No. 98-CV-4227) (the "Second Petition") in which he raised the same two issues as in his First Petition. In addition, he made an ineffective assistance of trial counsel claim based on the following: (a) the failure to raise the merger doctrine issue; (b) the lower court's denial of Staton's application to be relieved of counsel; and (c) the failure to raise the sentencing court's misidentification of him at sentencing as the person wearing an offensive t-shirt, upon which the court relied to impose an excessive sentence.
Although this Second Petition was dated April 13, 1998, it appears to be an identical copy of the First Petition that was simply resubmitted in June. I use the filing date since the record does not reflect when Staton delivered this petition to the prison authorities for mailing. In any event, allowing Staton a few extra days to account for the mailing of the petition would not affect the outcome of the statute of limitations issue.
I permitted Staton to add this claim regarding his sentence (after he had already submitted his Second Petition) by order dated July 22, 1998.
On December 16, 1998, Staton filed a pro se motion in the state Supreme Court to set aside his sentence pursuant to N.Y. Crim. Proc. Law § 440.20. He asserted that he was improperly sentenced as a persistent felony offender, based on the erroneous belief that he wore an offensive t-shirt when he appeared in court. The state Supreme Court rejected Staton's motion. People v. Staton, Indict. No. 2606-93, slip. op. (N.Y.Sup.Ct., Queens County, Feb. 25, 1999). It stated:
Respondent asserts that the date of filing was on or around January 20, 1999, inasmuch as that is the date that the state court received Staton's motion. See C.P.L.R. § 304. I use the actual date appearing on Staton's motion, even though it is an open question in the Second Circuit as to whether or not the "prisoner mailbox rule" applies to a state prisoner's filing of a state collateral attack for purposes of the AEDPA's tolling provisions. Although the New York Court of Appeals has rejected the application of the federal prisoner mailbox rule to state filings, see Grant v. Senkowski, 95 N.Y.2d 605, 608-09 (2001), some federal courts in this circuit have held that the federal rule is applicable, see, e.g., Fernandez v. Artuz, 175 F. Supp. 2d 682 (S.D.N.Y. 2001); Catlett v. Greiner, 2001 WL 1267194 (S.D.N.Y. Oct. 23, 2001); but see Rosario v. Bennett, No. 01 Civ. 7142, 2002 WL 31852827 (S.D.N.Y. Dec. 20, 2002). In any event, no matter which date I use, my conclusion is the same.
The defendant has failed to show that the sentence of fifteen years to life as a persistent felony offender was illegal or improper. The defendant was previously convicted of three felonies. He was then convicted of another felony, unlawful imprisonment in the first degree (Penal Law § 135.10) making him a discretionary persistent felon under Penal Law § 70.10. This court then imposed the above sentence upon the defendant. Whether the defendant was wearing offensive attire or proper attire is irrelevant. The defendant's criminal record explains, for the most part, this court's sentence.Id.
On March 8, 1999, Staton sought leave to appeal the state court decision denying his § 440.20 motion. On March 26, 1999, I granted Staton's request to hold his Second Petition in abeyance and directed him to notify me upon the resolution of his pending state court motion. Staton v. Senkowski, No. 98-CV-4227 (March 26, 1999). The Appellate Division denied Staton leave to appeal the denial of his § 440.20 motion on April 19, 1999.People v. Staton, Indict. No. 2606-93, slip. op. (N.Y.App.Div. 2d Dep't, April 19, 1999).
Apparently, on April 7, 1999, I unnecessarily granted Staton's request, again, to continue to hold his federal petition in abeyance. Staton v. Senkowski, No. 98-CV-4227 (April 7, 1999).
On July 12, 1999, Staton filed a pro se motion in the state Supreme Court to vacate his conviction pursuant to N.Y. Crim. Proc. Law § 440.10. He asserted the following grounds: (a) ineffective assistance of trial counsel for failure to (i) call a certain witness to the stand, (ii) move for dismissal of the indictment, (iii) properly investigate the case and to interview Staton, and (iv) move to be relieved from the case; (b) the denial of due process and the right to a fair trial; (c) duress, misrepresentation and fraud by the court and the prosecutor; and (d) the procurement of material evidence in violation of his rights. The state court denied this motion on September 24, 1999.People v. Staton, Indict. No. 2606-93, slip. op. (N.Y.Sup.Ct. Sept. 24, 1999). In ruling that Staton was not denied the effective assistance of counsel, the court stated that "[w]hile it is true that the attorney-client relationship in this case had a rocky start, there was apparently effective communication between the two as evidenced by the fact that the attorney made factual arguments during the trial obviously based on the facts his client told him. As for whether [a particular] witness should have been called, that is strategic." Id. The court found the remaining claims to be "either barred because they have either been previously decided or presented to the Appellate Division, or they have no merit." Id. (citation omitted). The Appellate Division denied leave to appeal on December 9, 1999. People v. Staton, Indict. No. 2606-93, slip. op. (N.Y.App.Div. 2d Dep't, Dec. 9, 1999).
By order dated January 10, 2000, I reinstated Staton's Second Petition. Subsequently, Staton requested that I again hold his petition in abeyance pending resolution of a new issue in state court. By order dated May 2, 2000, I granted Staton's request (which he made by letter dated March 22, 2000) to hold his petition in abeyance pending the resolution of a new issue in state court and dismissed the Second Petition without prejudice to reinstatement. In that order, I also noted that I had held his Second Petition in abeyance pending resolution of his state court motions from March 26, 1999 until December 21, 1999. The Clerk of Court signed the Judgment on May 5, 2000, and it was entered on the docket on May 10, 2000.
Almost five months later, on September 29, 2000, Staton, proceeding pro se, filed a petition for a writ of error coram nobis in the Appellate Division. He alleged ineffective assistance of appellate counsel based on appellate counsel's failure to argue that he had received an unlawful sentence as a discretionary persistent felony offender in that he had received ineffective assistance of counsel when he was convicted of the prior three felonies. The Appellate Division denied the motion on December 26, 2000. People v. Staton, 718 N.Y.S.2d 856 (2d Dep't 2000) ("The appellant has failed to establish that he was denied the effective assistance of appellate counsel.").
On December 21, 2000, Staton again filed a motion to set aside his sentence pursuant to § 440.20. He argued that his sentence should be set aside because, prior to sentencing, the trial judge did not order a hearing pursuant to N.Y. Crim. Proc. Law § 400.20(3) to determine whether he should be classified as a persistent felony offender pursuant to N.Y. Penal Law § 70.10(2). On March 21, 2001, the New York Supreme Court denied that motion, because the Appellate Court had already determined that the sentence was not "illegally imposed or otherwise invalid as a matter of law," and thus it was procedurally barred pursuant to N.Y. Crim. Proc. Law § 440.20. People v. Staton, Indict. No. 2606-93, slip. op. (N.Y.Sup.Ct., Mar. 21, 2001). On June 12, 2001, the Appellate Division denied his request for leave to appeal that decision. People v. Staton, Indict. No. 2606-93, slip. op. (N.Y.App.Div. 2d Dep't, June 12, 2001).
On June 21, 2001, Staton filed the instant pro se petition for a writ of habeas corpus (the "Current Petition") in this Court, challenging his convictions on the following grounds:
The instant petition was received and filed by the Court on June 25, 2001. However, Staton appears to have given his papers to prison officials for forwarding to this Court on June 21, 2001, and thus the papers are deemed to have been filed on that date. See note 3, supra.
(a) he was deprived of the effective assistance of counsel at trial, because counsel failed to argue
(i) that the merger doctrine required vacatur of his unlawful imprisonment conviction because the conduct constituting the offense was an inseparable part of the robbery charge;
(ii) that the lower court abused its discretion in denying his pro se application that his trial counsel be relieved,
(iii) that the trial court erroneously stated at sentencing that Staton had worn a t-shirt with the words "Fuck You" on it while in court and that the sentencing court unfairly relied on this conduct to justify the excessive sentence given;
(b) he was deprived of the effective assistance of appellate counsel on his direct appeal, because appellate counsel failed to argue
(i) that he could not be a persistent felony offender because he received ineffective assistance during the prosecution of those prior offenses,
(ii) that he could not have been a persistent felony offender due to his age at the time of his first felony, and
(iii) that trial counsel was ineffective because he failed to investigate his prior convictions, and
(c) the trial court erroneously sentenced him as a persistent felony offender in that it did not hold a hearing on the issue.
DISCUSSION
A. The Statute of LimitationsThe Antiterrorism and Effective Death Penalty Act of 1996 (the "Act") signed into law on April 24, 1996, provides in relevant part that:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such state action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) 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 toward any period of limitation under this subsection.28 U.S.C. § 2244(d). See also Lindh v. Murphy, 521 U.S. 320, 327 (1997) (§ 2244 applies "to the general run of habeas cases . . . when those cases had been filed after the date of the Act."); Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998).
Ordinarily, the one-year period of limitation runs from the date on which the state criminal judgment of conviction becomes final. As noted earlier, on January 27, 1997, the Appellate Division affirmed petitioner's conviction, and on May 8, 1997, the New York State Court of Appeals denied petitioner leave to appeal. Thus, petitioner's conviction became final on August 6, 1997, upon expiration of the 90-day period for seeking a writ of certiorari. See Williams v. Artuz, 237 F.3d 147, 150-51 (2d Cir. 2001). Staton filed the Current Petition on June 21, 2001, almost four years later.
Section 2244(d)(2)'s tolling provision for petitions for collateral relief does not apply to federal habeas petitions.See Duncan v. Walker, 533 U.S. 167, 181 (2001) ("§ 2244(d)(2) does not toll the limitation period during the pendency of a federal habeas petition"). Thus, the limitation period was not tolled during the pendency of Staton's First Petition, dated April 13, 1998 and dismissed by entry of judgment on the record on May 11, 1998, or by pendency of Staton's Second Petition between June 11, 1998 and its dismissal by judgment entered on May 10, 2000. In short, by the time Staton filed his first petition for collateral relief in state court (December 16, 1998), his one-year limitation period, which began on August 6, 1997, already expired; more than 16 months had elapsed.
At that time, however, the Second Circuit viewed the pendency of a petition for federal habeas relief as an event that tolled the statute of limitations. See Walker v. Artuz, 208 F.3d 357, 360-61 (2d Cir. 2000). If that were true, Staton would still have had just shy of three months left in the one-year limitation period when judgment was entered dismissing the Second Petition on May 10, 2000. Still, even under that analysis, the Current Petition would have been out of time because the one-year limitation period would have expired on August 1, 2000, and Staton waited until September 29 to file his state court motion — a period of two months.
The Second Circuit has since held that although the rule inDuncan applies where the legal regime in place during the pendency of the initial habeas petition was that of Walker, the application of such rule does not preclude the consideration of equitable tolling.See Rodriguez v. Bennett, 303 F.3d 435, 438-39 (2d Cir. 2002). Accordingly, the limitations period may still be equitably tolled if Staton can demonstrate that "extraordinary circumstances prevented him from filing his petition on time,"Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000), and he "acted with reasonable diligence throughout the period he seeks to toll." Id.; see also Valverde v. Stinson, 224 F.3d 129, 133 (2d Cir. 2000) (confiscation of legal papers may be sufficient to establish potential basis for equitable tolling); but see Hizbullahankhamon v. Walker, 255 F.3d 65, 75 (2d Cir. 2001) (even with extraordinary circumstances early in the statutory period, petitioner must show he diligently pursued the application in the time remaining), cert denied, 536 U.S. 925 (2002).
Here, Staton asserts that his petition is timely because "this court was completely informed at every stage of the petitioner's state court proceedings and this court on three prior time[s] granted the petitioner the right to continue without prejudice and after the petitioner comp[l]eted the State Court['s] exhaust[ion] requirements." (Pet'r Traverse at 5.) Because I dismissed Staton's Second Petition without prejudice to renewal on the belief that Walker would continue to be the applicable law, I believe that Staton has satisfied the "extraordinary circumstances" test. Other courts in this circuit have agreed.See, e.g., Jimenez v. Walker, 166 F. Supp. 2d 765, 772 (E.D.N.Y. 2001) ("the fact that Duncan transformed the dismissal of the petition without prejudice into a dismissal with prejudice by rendering the petition time-barred presents extraordinary circumstances that warrant equitable tolling of the AEDPA statute of limitations."); Owens v. Comm'r of Corrections, No. 301 CV 1480, 2003 WL 22208496, at *4-5 (D. Conn. Sept. 4, 2003) (same); Rodriguez v. People, No. 01 Civ. 9374, 2003 WL 289598, at *14 (S.D.N.Y. Feb. 11, 2003) (same; collecting cases); see also, e.g., Leake v. Senkowski, 274 F. Supp. 2d 588, 591 (S.D.N.Y. 2003) (holding petition timely where it would have been considered timely prior to Duncan).
Nevertheless, for reasons explained below, I find that Staton has failed to meet the requisites of the diligence prong, and thus fails to meet the high standard for equitable tolling. See Smith, 208 F.3d at 17 ("[T]he party seeking equitable tolling must have acted with reasonable diligence throughout the period he seeks to toll.")
In Zarvela v. Artuz, 254 F.3d 374 (2d Cir. 2001), the Second Circuit presented another exception to the one-year limitation period. Zarvela held that district courts are required to stay a mixed habeas petition, i.e, one containing both unexhausted and exhausted claims, if dismissal of the entire petition "could jeopardize the timeliness of [the petitioner's] collateral attack." Id. at 380 (quotation marks omitted). The court further stated that a stay should be conditioned on the petitioner pursuing state court remedies "within a brief interval, normally 30 days, after the stay is entered and returning to federal court within a similarly brief interval, normally 30 days after state court exhaustion is completed."Id. at 381.
The Second Circuit has declined to address the question of whether Zarvela's holding applies retroactively. See Smaldone v. Senkowski, 273 F.3d 133, 139 (2d Cir. 2001). Nevertheless, courts of the Eastern and Southern Districts have appliedZarvela retroactively (staying the petitioner's original proceeding nunc pro tunc), so long as the petitioner acted with reasonable diligence in pursuing his state court remedies and in returning to federal court.
Courts have found that periods of delay well in excess of a month between state and federal court filings do not qualify for Zarvela treatment.See, e.g., Edwards v. Greiner, No. 00 CV 1331, 2002 WL 1467708, at *3 (E.D.N.Y. May 7, 2002) (finding retroactive stay inappropriate under Zarvela where, after habeas petition was dismissed, petitioner delayed 81 days before presenting his claims in state court; the delay was "well beyond any period of reasonable diligence."); Lindo v. Lefever, 193 F. Supp. 2d 659, 664 (E.D.N.Y. 2002) (no retroactive stay where petitioner waited three months after dismissal of initial petition to bring state court proceedings, and did not refile habeas petition until nine months after state proceedings were concluded).
The example of diligence in Zarvela itself involves a time period that was quite short. There, the Second Circuit retroactively stayed the petition when the petitioner filed his state court collateral attack less than ten days after the dismissal of his federal habeas petition, and he returned to federal court only fourteen days after the state court collateral challenge had been exhausted. Zarvela, 254 F.3d at 383. The Second Circuit emphasized the brevity of the intervals that qualify for equitable tolling by distinguishing Geraci v. Senkowski, 211 F.3d 6 (2d Cir. 2000), where it held that a petition was untimely because petitioner had failed to return to federal court within 30 days after his first state collateral challenge was denied and instead filed a second state collateral challenge 78 days later. Zarvela, 254 F.3d at 382 n. 3.
Courts that have allowed tolling on this ground have tended to follow the short time frames suggested in Zarvela. See, e.g., Owens v. Comm'r of Corrections, No. 301 CV 1480, 2003 WL 22208496, at *5 (D. Conn. Sept. 4, 2003) (tolling appropriate where each trip between federal and state court by petitioner was approximately one month in length); Devino v. Duncan, No. 01 CV 9044, 2002 WL 91615, at *4 (S.D.N.Y. Jan. 24, 2002) (noting that if Zarvela was in effect, petition would be timely because he acted "essentially within the time constraints outlined in Zarvela. His collateral attack in state court was filed no later than 33 days after the dismissal of the federal petition, and this petition was filed less than a month after the collateral attack was denied."); Jimenez v. Walker, 166 F. Supp. 2d 765, 771-72 (E.D.N.Y. 2001) (period when first petition was pending should be equitably tolled because original petition was filed with only 23 days left in one-year limitations period, and petitioner was diligent because he filed his state collateral attack while his initial petition was pending, and returned to federal court within 6 days of completion of state proceedings).
Here, equitable tolling is unavailable because Staton "failed to make the `prompt trip to and from the state courts' contemplated by Zarvela." Senor v. Greiner, No. 00-CV-5673, 2002 WL 31102612, at *4 (E.D.N.Y. Sept. 18, 2002) (quotingZarvela, 254 F.3d at 383). Although Staton quickly returned to federal court on June 21, 2000, after the Appellate Division denied him leave to appeal on June 12, 2001, he was dilatory in returning to state court after judgment was entered on May 10, 2000, dismissing his Second Petition. Staton filed an application for a writ of error coram nobis with the Appellate Division on September 29, 2000, almost five months after dismissal of his Second Petition and more than three years after his conviction became final. Thus, because Staton has not acted with reasonable diligence under Zarvela, the instant petition is time-barred under 28 U.S.C. § 2244(d)(1)(A).
Even if I were to exclude all the time during which Staton's federal habeas petition was pending pursuant to Walker, his petition would still have been untimely. Indeed, he delayed two months (59 days) from the expiration of the one year period in the pre-Duncan world (on August 1, 2000) to file his collateral attack in state court, which is clearly well in excess of the 30 day interval touted in Zarvela. Compare, e.g., Leake, 274 F. Supp. 2d at 591 (petition timely post-Duncan where it would have been considered timely pre-Duncan); Figueroa v. Fischer, No. 99 Civ. 2392, 2003 WL 1701997, at *6 (S.D.N.Y. Mar. 31, 2003) ("Although Petitioner waited close to seven months to refile his habeas petition in this Court after his state proceedings were exhausted, this must be viewed in light of the fact that he was still within the one-year limitations period, had the time during which his initial petition was pending in this Court not been counted).
B. The Merits
1. Ineffective Assistance of Trial Counsel
In any event, even if the statute of limitations were not a bar to Staton's suit, Staton could not prevail on the merits of his claims for relief under the stringent AEDPA standard.
Under the AEDPA standard, the reviewing court may grant habeas relief only if the state court's decision "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). A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Williams v. Taylor, 529 U.S. 362, 413 (2000). Under the "unreasonable application" 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." Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001) (citing Williams, 529 U.S. at 411); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("Where . . . the state court's application of governing federal law is challenged, it must be shown to be not only erroneous, but objectively unreasonable.").
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance "fell below an objective standard of reasonableness,"id. at 688, and (2) 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. In assessing the reasonableness of counsel's performance, "judicial scrutiny of counsel's performance must be highly deferential," and the court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (internal quotation marks omitted); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998); see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003) (per curiam) ("[C]ounsel has wide latitude in deciding how best to represent a client. . . .").
In assessing counsel's performance, I "must conduct an objective review . . . measured for `reasonableness under prevailing professional norms,' which includes a context-dependent consideration of the challenged conduct as seen `from counsel's perspective at the time.'" Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003) (citations omitted) (quotingStrickland, 466 U.S. at 688-89)). The Supreme Court has "declined to articulate specific guidelines for appropriate attorney conduct" and has instead emphasized that "`the proper measure of attorney performance remains simply reasonableness under prevailing professional norms.'" Id. at 2535 (quotingStrickland, 466 U.S. at 688).
To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome. Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different."Id. at 694. A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight. See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Staton was not deprived of the effective assistance of counsel at trial. First, Staton's claim that trial counsel should have objected to his unlawful imprisonment conviction, on the ground that it violated New York's merger doctrine, is unpersuasive. That doctrine precludes excessive penalties in robbery or rape cases by the addition of a kidnapping charge. Specifically, a defendant cannot be convicted of kidnapping or unlawful imprisonment based on conduct that, while literally falling within the definitions of those crimes, was merely incidental to another crime, such as rape or robbery. The New York Court of Appeals has held that, in such circumstances, the legislature did not intend that defendants be subject to multiple convictions for conduct that should result in only a single conviction. People v. Gonzalez, 80 N.Y.2d 146, 151-52 (1992). It has further held that the doctrine can preclude a kidnapping conviction even when the defendant has been acquitted of the underlying substantive crime. Id. at 152-53.
The merger doctrine does not necessarily preclude a conviction for both kidnapping (or unlawful imprisonment) and a substantive crime, however. Rather, the critical inquiry is whether separate punishment was intended for the unlawful restraint. Id. at 152. "The guiding principle is whether the restraint was so much the part of another substantive crime that the substantive crime could not have been committed without such acts and that independent criminal responsibility may not fairly be attributed to them." Id. at 153 (quotations and citations omitted). Thus, the merger doctrine does not apply to a conviction for kidnapping where the substantive crime and the unlawful abduction are discrete and separable. Id.; People v. Cassidy, 40 N.Y.2d 763, 767 (1976). For example, aggravating circumstances, such as the use of a deadly weapon during a prolonged abduction, "is the sort of behavior the Legislature intended to proscribe" as a separate crime, and thus, this conduct does not implicate the doctrine. Gonzalez, 80 N.Y.2d at 153. Similarly, the crimes will not "merge" if the abduction persists for a substantial period of time following the underlying crime, or if the abduction or restraint is unnecessary to the consummation of the underlying crime. See, e.g., People v. Smith, 47 N.Y.2d 83, 87 (1979) (robbery fully consummated before gunpoint detention in a car).
In this case, the evidence at trial established that Staton's commission of the robbery — for which he was acquitted — was separate and apart from the acts that constituted the unlawful imprisonment. According to the victim, Staton entered the vehicle, held a gun to the victim's head, demanded money, and threatened to "blow his brains out." The victim responded by giving Staton all of the money in his possession, approximately $100.
After Staton took that money, he demanded more, and threatened once again to kill the victim. There ensued a 20 to 30 minute episode, during which the victim pretended to be headed for a bank but was actually devising a plan to escape. Specifically, he drove towards a bank branch located across the street from a police precinct and crashed the car into a marked police vehicle parked outside of the precinct.
For several reasons, it did not fall below an objectively reasonable standard of care for trial counsel not to raise the merger doctrine. First, the robbery for which Staton could have been found guilty was completed before the 20 to 30 detention began. Second, that detention was sufficiently lengthy to constitute more than the "initial restraint" required for the commission of a robbery. Third, Staton's possession of a gun and repeated threats to kill the victim rise to the level of egregious conduct discussed inGonzalez and therefore were sufficient to support the conviction of second-degree kidnapping.
Staton's second ineffective assistance claim arises out of his sentencing. Specifically, he claims that the sentencing judge incorrectly identified him as the person who had previously worn to court a t-shirt bearing an obscene message, and that counsel was ineffective for failing to correct the misimpression. I have reviewed the state court record, including the minutes of the sentencing proceeding on May 23, 1994, and I find no support for Staton's belated claim that he was not the person wearing the offensive t-shirt. In any event, this claim was advanced in Staton's supplemental brief on the direct appeal, and the Appellate Division rejected it. People v. Staton, 653 N.Y.S.2d 866, 867 (the "sentencing court acted within its discretion in adjudicating the defendant to be a persistent felony offender," and Staton's other claims were either unpreserved or lacking in merit). I see no basis to conclude that the state court's decision was erroneous, let alone unreasonable.
Similarly, the Appellate Division properly rejected Staton's claim that he received ineffective assistance of counsel when the trial court denied an application by Staton and his trial counsel that the latter be relieved. The application was made the day before trial was to commence, and the trial court acted well within its discretion in rejecting the conclusory, opaque representations on which it was based.
Finally, the record reveals that Staton received effective assistance of trial counsel. Defense counsel delivered a cogent opening statement, made appropriate objections, and forcefully cross-examined the government's witnesses. He successfully argued for dismissal of the second count of the indictment at the close of the government's evidence. He presented a coherent defense, casting the incident as a fare dispute and delivering a summation that produced an acquittal on the first degree robbery charge, the top count in the indictment.
2. Ineffective Assistance of Appellate Counsel
Nor was Staton denied the effective assistance of appellate counsel. Although the Supreme Court formulated the Strickland test in the context of examining a claim of ineffective assistance of trial counsel, the same test applies to claims regarding the performance of appellate counsel. See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994); Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel need not present every nonfrivolous argument that could be made. See Mayo, 13 F.3d at 533; see also Evitts v. Lucey, 469 U.S. 387, 394 (1985) (emphasizing that appellate counsel "need not advance every argument, regardless of merit, urged by the appellant"). Moreover, reviewing courts should not employ hindsight to second-guess an appellate attorney's strategy choices. See Mayo, 13 F.3d at 533. A petitioner, however, may establish constitutionally inadequate performance if he shows that his appellate counsel omitted material and obvious issues while pursuing matters that were patently and significantly weaker. Cf. Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("[R]elief may be warranted when a decision by counsel cannot be justified as a result of some kind of plausible trial strategy.").
Appellate counsel in this case raised three claims: (a) that the merger doctrine should have barred the unlawful imprisonment conviction; (b) that guilt was not proven beyond a reasonable doubt; and (c) that the court abused its discretion by sentencing Staton as a discretionary persistent felony offender. Appellate counsel clearly exercised professional discretion in choosing not to raise the claim urged now by Staton — that the trial court erroneously sentenced him as a persistent felony offender because the underlying felony convictions were themselves obtained only due to ineffective representation of previous counsels. This claim would not have been successful, as the sentencing judge followed the requisite steps under the persistent felony offender statute by first determining that Staton had previously been convicted of three other felony offenses and then looking to Staton's history and character to determine if extended incarceration would be in the best interests of society. See N.Y. Penal Law § 70.10(2). Furthermore, as respondent noted in opposing Staton's coram nobis petition, the record was insufficient to challenge the effectiveness of Staton's attorneys on the underlying felonies, which dated as far back as 1981. (Mem. Law Opp. Def's Mot. Writ Error Coram Nobis at 12-13.) In any event, as noted earlier, the Appellate Division held that Staton could not establish that he was denied the ineffective assistance of appellate counsel, People v. Staton, 718 N.Y.S.2d 856 (2d Dep't 2000), and I cannot say that its decision was unreasonable.
Section 70.10(2) of the New York Penal Law provides that,
When the court has found, pursuant to the provisions of the criminal procedure law, that a person is a persistent felony offender, and when it is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest, the court, in lieu of imposing the sentence of imprisonment authorized by section 70.00, 70.02, 70.04 or 70.06 for the crime of which such person presently stands convicted, may impose the sentence of imprisonment authorized by that section for a class A-I felony. In such event the reasons for the court's opinion shall be set forth in the record.
Staton's remaining challenge raised in the Current Petition — that the sentencing court erred in sentencing him as a persistent felony offender in that it failed to conduct an evidentiary hearing — is also without merit. On direct review, the state court determined that his sentence was proper. For the reasons just explained, I cannot say that this conclusion was an unreasonable application of federal law. I note that the respondent has asserted that Staton's claims of ineffective assistance of appellate counsel and erroneous sentencing are barred because he first raised them in his Current Petition, which is untimely, and they do not relate back to the claims he asserted in his previous petitions pursuant to Federal Rule of Civil Procedure 15(c). See Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 815 (2d Cir. 2000). Because I have held that the Current Petition is time-barred, I do not resolve this issue here.
3. Apprendi
Finally, although Staton did not raise an Apprendi issue in his papers, it bears noting that even if he had done so, I could not consider that claim here because I believe it would be procedurally barred. The Second Circuit has determined that Apprendi v. New Jersey, 530 U.S. 466 (2000), announced a new procedural rule that cannot be applied retroactively to collateral attacks pursuant to 28 U.S.C. § 2255. Coleman v. United States, 329 F.3d 77, 90 (2d Cir. 2003). Other courts have reached the same conclusion with respect to petitions under 28 U.S.C. § 2254. See, e.g., Dellinger v. Bowen, 301 F.3d 758, 765 (7th Cir. 2002), cert. denied, 537 U.S. 1214 (2003);Burch v. Corcoran, 273 F.3d 577, 584 (4th Cir. 2001), cert. denied, 535 U.S. 1104 (2002). I cannot think of any logical distinction between § 2254 relief and § 2255 relief that would warrant a different rule to apply in the state context, at least for noncapital cases. See Summerlin v. Stewart, 341 F.3d 1082, 1084 (9th Cir. 2003), cert. granted, Schriro v. Summerlin, 124 S. Ct. 833 (2003) (holding that the mandate inRing v. Arizona, 536 U.S. 584 (2002) — that a jury, rather than a judge, must find aggravating circumstances in a capital case — applies retroactively on collateral review); but see Burch, 273 F.3d at 584 (no distinction in capital case). Thus, I do not consider this issue here.
Staton did raise this Apprendi issue during the oral argument on January 30, 2004, citing my decision in Brown v. Greiner, 258 F. Supp. 2d 68 (E.D.N.Y. 2003).
CONCLUSION
For the foregoing reasons, the petition is denied. Because Staton has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.
So Ordered.