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holding that prosecutor's summation may contain fair comment based upon the evidence
Summary of this case from Tillery v. LempkeOpinion
02-CV-0526(JBW), 03-MISC-0066 (JBW)
October 31, 2003
MEMORANDUM, JUDGMENT ORDER
The petition for a writ of habeas corpus is denied. No hearing on this matter is necessary. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
This petition was filed on January 22, 2002, Petitioner, sometimes referred to as defendant claims:
POINT I
The state's hearing court's determination in refusing to suppress petitioner's statement was contrary to clearly established federal law, and the state court finding amounted to an unreasonable application. US, Const. Amends-, V, VI, XIV; Const. Art, 1 § 6.
A. Petitioner had invoked his right to counsel upon being arrested and handcuffed at the scene.
B. Petitioner, after receiving his Miranda warnings, requested his attorney and showed the detective his lawyer's card, and purportedly asked if he should call his attorney.
C. The State's Failure to establish a waiver of petitioner's right to counsel, when the detective's response to petitioner's inquiry said, "I would want my story told if I were you," was ineffective to establish a sufficient waiver on petitioner's behalf at he station house and required suppression of the oral and written statements.
POINT II
The hearing court erred in refusing to suppress petitioner's statement made after he had waived his Miranda right because (1), Petitioner had invoked his right to counsel when he showed the detective prior to being mirandized, his lawyer's card and purportedly asked if he should call his lawyer when the uncontested facts established that at the time he was arranging for his surrender, he specifically asked his friend for his attorney business card for the express purpose of retaining counsel in this particular matter; and (2). The detective's response to petitioner's inquiry, in which he said, "I would want my story told if I were you," rendered petitioner's subsequent Miranda waiver invalid because the detective's statement was designed to improperly influence petitioner by suggesting that it was in his best interest to talk and that he would not be able to do so once he obtained a lawyer. U.S, Const. Amend., V, VI, XIV; N.Y, Const. Art. 1 § 6.
POINT III
The Petitioner Ronald Thompson did not receive the effective assistance of counsel during his trial and the cumulative error amounted to a violation of his state and federal constitutional rights. U.S. Const. Amend., V. XIV; N.Y. Const, Art. 1 § 6.
POINT IV
The state's intentional withholding of a autopsy receipt-ballistic evidence from petitioner's case which contained information of exactly what type of caliber bullet, and gun was used violated petitioner's Brady right to pre-trial discovery and amounted to a denial of due process. U.S. Const, Amend., XIV; N.Y. Const. Art, 1 § 6.
POINT V
Petitioner was denied his state and federal due process right when the state prosecutor discovered her only eyewitness false testimony before, during and after petitioner was convicted, and knowingly failed to correct the false testimony. U.S. Const, Amend., XIV; N.Y, Const. Art, 1 § 6.
POINT VI
The petitioner Ronald Thompson was provided with newly discovered evidence that was not available during the trial and had this information been discovered, there is a reasonable probability that the outcome of the trial would have been different. U.S. Const. Amend., XIV; N.Y. Const, Art. 1 § 6.
POINT VII
Trial counsel's ineffectiveness actually had a probable effect on the outcome of the trial, petitioner in-fact suffered actual prejudice as a result of his incompetence which fell below the bounds of reasonableness, when he failed to conduct a due diligent investigation of the arresting detectives, who allowed an Assistant District Attorney to interrogate petitioner about the incident for which he was being held for without the benefit of Miranda warnings, then refused further interview when assistant district attorney requested him to make a video statement, U.S. Const. Amends. V, VI, and XIV; N.Y. Const., Art. 1 § 6.
POINT VIII
The state's intentional withholding information of an Assistant District Attorney from the defense, who made a precinct visit to interrogate petitioner, violated their Brady obligation. U.S. Const. Amend. XIV; Const., Art., 1 § 6.
The evidence supports the following statements:
In the early evening hours of August 29, 1996, petitioner put a hand gun to Robert Patterson's head and fired. The bullet entered Robert Patterson's body through the bridge of his nose directly between the eyes, causing his death. The shooting was seen by Bennie Smith and Joseph Davis, each of who knew the deceased and petitioner. Officer Christopher Guiffre was the first officer to arrive at the murder scene. He saw Patterson lying on the garage floor with a pool of blood near his head and he recovered from underneath Patterson's buttoned shirt a revolver and an shoulder holster. Petitioner later surrendered to the police.
Following his arrest, petitioner was charged with two counts of Murder in the Second Degree (N.Y, Penal Law § 125.25[1]), one count of Criminal Possession of a Weapon in the Second Degree (N.Y. Penal Law § 265.03), one count of Criminal Possession of a Weapon in the Third Degree (N.Y. Penal Law § 265.02), and one count of Tampering with Physical Evidence (N.Y. Penal Law § 215.40) (Queens County Indictment Number 3186/96).
Petitioner moved in New York Supreme Court to suppress a statement made to Detective Hein after his arrest, After holding a Huntley hearing, the court denied the motion in a written decision dated March 6, 1997.
At the conclusion of the trial, petitioner was convicted of one count of Murder in the Second Degree, and one count of Criminal Possession of a Weapon in the Third Degree.
On September 2, 1997, petitioner was sentenced to concurrent indeterminate prison terms of from twenty years to life on the murder conviction, from five to fifteen years on the second degree weapon possession count, and from two years to six years on the third degree weapon possession count.
On June of 1999, petitioner, through counsel, filed a brief in the Appellate Division. In that brief, petitioner raised two claims. First, petitioner argued that the hearing court erred in denying his pre-trial motion to suppress his statements. Second, petitioner argued that his sentence of twenty years to life for second-degree murder was excessive.
In October of 1999, petitioner filed a pro se supplemental brief. In that brief, petitioner raised two claims. First, he argued that the hearing court erred in denying his pre-trial motion to suppress his statements because petitioner had invoked his right to an attorney. Second, petitioner argued that comments made during the prosecutor's summation denied petitioner his right to a fair trial.
On April 10, 2000, the Appellate Division affirmed petitioner's judgment of conviction. People v. Thompson, 271 A.D.2d 555, 706 N.Y.S.2d 136 (2d Dept. 2000). It ruled that petitioner's actions in showing a lawyer's business card to a detective and asking that detective whether he should call a lawyer did not constitute an unequivocal invocation of the right to counsel. Therefore, the trial court correctly denied petitioner's suppression motion, The court also held that petitioner's contention regarding the prosecutor's summation were unpreserved and in any event, they were a fair comment on the evidence. Finally, the court held that petitioner's sentence was neither harsh nor excessive.
On May 11, 2000, petitioner attempted to appeal to the Court of Appeals.
On July 7, 2000, the Court of Appeals denied petitioner's leave application. People v. Thompson, 95 N.Y.2d S58, 714 N.Y.S.Zd 10 (2000).
In a pro se motion dated March 27, 2001, petitioner moved before the New York State Supreme Court to vacate his judgment of conviction pursuant to section 440.10 of die New York Criminal Procedure Law. He made four claims. First, that the People committed a Rosario violation when they failed to turn over an "autopsy receipt/ballistic evidence," Second mat his conviction was obtained by the false testimony of a witness, Bennie Smith, and that the prosecutor was aware that this witness was lying. Third, claims that his trial counsel was ineffective and failed; to develop an adequate hearing record; to adequately investigate a defense witness who allegedly saw petitioner, after the shooting, running down a street saying to himself "this was a mistake;" to call a witness who would allegedly have testified that the deceased's mother had told her that the deceased had left her home with a gun shortly before the shooting; to call a ballistic expert to determine the type of gun that was used to kill the deceased; and that counsel opened the door to prejudicial testimony. Fourth, that his conviction should be vacated based on newly discovered evidence.
On September 6, 2001, the Supreme Court, denied petitioner's motion. The court found that petitioner's claim regarding the Rosario violation was procedurally barred by sections 440.10(2) and (3) of the New York Criminal Procedure Law because sufficient facts appeared on the record to have permitted direct review of petitioner's claims on direct appeal Additionally, the court stated that his other claims were, for the most part, on-the-record claims, but in any event, defendant's claims were meritless. See Order and Decision, dated September 6, 2001, pp. 3-9.
In pro se motion dated September 25, 2001, petitioner moved for leave to appeal to the Appellate Division from the state court's order denying his motion to vacate the judgement of conviction. The motion was denied on January 10, 2002, People v. Thompson, Slip, Op. No, 2001-08836 (2d Dept, January 10, 2002).
On February 12, 2002, petitioner filed a second pro se motion pursuant to New York Criminal Procedure Law § 440.10. Petitioner raised two claims, First, that his trial counsel was ineffective because he failed to conduct an investigation into the actions of the arresting detectives who permitted an assistant district attorney to question petitioner without advising him of his Miranda rights. Second, that the prosecutor withheld the fact that an assistant district attorney questioned petitioner at the police precinct from the defense counsel.
On May 16, 2002, the Supreme Court denied petitioner's motion. It ruled that petitioner's claim regarding the ineffective assistance of trial counsel is procedurally barred because petitioner was in a position to raise this claim in his first motion to vacate judgement pursuant to C.P.L, § 440.10, but failed to do so. See N.Y.CP.L, § 440.10(3). In any event, the court ruled, petitioner's claim was without merit. Additionally, the court ruled that petitioner's second claim alleging a Rosario violation on the ground that the People withheld from defense counsel that an assistant district attorney had questioned him at tee precinct was without merit.
In a pro se motion dated June 4, 2002, petitioner moved for leave to appeal to the Appellate Division from the state court's order denying his motion to vacate the judgment of conviction. The motion was denied on August 9, 2002. People v. Thompson, Slip. Op. No. 2002-06060 (2d Dept. August 9, 2002).
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 19% ("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, 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, No. 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug, 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the court of appeals is remanded 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, Berbary v. Torres, No, 02-2463, 2003 U.S. App. LEXIS 16167, at *25 (2d Cir. Aug. 7, 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 LIS.C. g 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 ninety-day period for filing a petition for a writ of certiorari to the United States Supreme Court has expired. See McKinney v. Artuz, No. 01-2739, 2003 U.S. App. LEXIS 6745, at *22 (2d Cir. 2003); 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 mat 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. 199S) (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, No. 02-2611, 2003 U.S. App. LEXIS 15063, at *17 (2d Cir. July 30, 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)).
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).
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)).
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. Barltett, 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 S04, 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.
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 eases, 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).
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. ___, No. 02-311, slip op. at 8-10 (June 26, 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 US, at (589.
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 duly 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).
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).
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).
X. Verdict Against the Weight of the Evidence
To the degree 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 US. 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 petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue.
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 (JEW), 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 US. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) ( Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MTSC-Q066 (JBW), 2003 U.S. Dist. LEXIS 11056, at M-*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); Marl Inez v. Greiner, 99-CV-4663, 03-MISC-OOG6 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.RY, June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JEW), 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-006G (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 9S86, 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 (JEW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.HY, June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7S37, 00-MISC-0066 (JEW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
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. IS (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 US. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
There are arguably unexhausted claims in the petition, Since they are frivolous, the court elects to dismiss the petition rather than to delay the case to permit further applications in the state courts.
A.
The Huntley hearing was complete, One detective, Hein, informed petitioner of his Miranda rights (Hein: H 24, 48); petitioner produced a business card, which Hein did not read. Petitioner then asked Hein if he should call his attorney. Hein told him that he could not make that decision. Petitioner then asked what Hein would do. Again, the detective stated that he could not advise petitioner whether to call his attorney, but if he were in petitioner's position, he would want this story to be heard. Other than this conversation, petitioner never mentioned or specifically asked for an attorney (Hein: H 24-25).
Around twenty-five minutes later, at approximately 8:40 p.m., in the presence of his partner, Detective Hendrickson, Hein advised petitioner of his Miranda rights (Hein; H 50), After every statement, the detective asked petitioner if he understood, and petitioner responded "yes" (Hein: H 16-21). Hein recorded petitioner's answers on a police department form (Hein: H 17-21).
Petitioner then gave an oral statement which Hein recorded, Both the detective and petitioner signed the statement at the bottom. In his statement, petitioner admitted to shooting Robert Patterson. Petitioner also stated that before the shooting, he and Patter son had argued. Patter son had said that he was going to get his gun and shoot petitioner, so petitioner went and got a gun from a person he knew as "pimp," When he went back to the garage, Patterson was sitting on a chair and started cursing at petitioner, they struggled and his gun went off killing Patterson. Petitioner further stated that he walked away. He then called his home from a friend's house, spoke to his mother and a detective, and arranged to meet that detective (Hein; H 21-24).
In a written decision, dated March 6, 1997, the court credited all of the state's witnesses and rejected petitioner's testimony (Decision: 6). The court found that the state had sustained its burden of demonstrating beyond a reasonable doubt the voluntariness of petitioner's oral and written statements (Decision: 6). The court also found that petitioner's question regarding whether he should call his lawyer, "when viewed in conjunction with the attending circumstances, clearly did not constitute a request for counsel,"
The state court's factual determination, which rejected all of petitioner's factual allegations regarding his invocation of counsel and the undue influences of the detective's response must now be assumed to be correct. Based on its findings of fact, the state court's decision rejecting petitioner's legal claim was not contrary to controlling Supreme Court precedent.
Under 28 U.S.C. § 2254(d) a petitioner's application for habeas corpus relief "shall not be granted" on any claim adjudicated on the merits in State court, unless that adjudication "was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States"; or else was founded on "an unreasonable determination of the facts in light of the evidence presented . . ." The section requires the reviewing federal court assessing the state court's decision to "presume . . . [the] correct [ness]" of the state's findings of fact — a presumption that the petitioner may overcome only by "clear and convincing evidence," 28 U.S.C. § 2254(e)(1).
A state court adjudicates a federal claim on the merits when it disposes of the claim "on the merits," and reduces its disposition to judgement. Sellan v. Kuhlmann, 261 F.3d 303, 309 (2d Cir. 2001), To determine whether a state court disposes of a claim on the merits, courts should consider (1) what the state courts have done in similar cases, (2) whether there was any indication that the state court was aware of any ground for not adjudicating the claim on the merits, and (3) whether the opinion suggests a reliance upon procedural grounds rather than a determination on the merits, Sellan v. Kuhlman, 261 F.3d at 312, quoting Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999). When the state court does so, a federal habeas court must defer to the state court's decision in the manner prescribed in 28 U.S.C. § 2254(d)(1).
The Supreme Court has held that to determine the voluntariness of a confession, a court should look to the totality of the circumstances in which the confession was given. Arizona v. Fulminante, 499 U.S. 279, 282-89 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973); see also United States v. Kaba, 999 F.3d 47, 51 (2d Cir.), cert. denied, 510 U.S. 1003 (1993), This includes the petitioner's background and experience, the conditions of the interrogation, and the conduct of the law enforcement officers,United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995),cert. denied, 516 US. 1182 (1996).
While the voluntariness of a habeas petitioner's confession is a question of law, subject to the review provisions of section 2254(d)(1), the state court's factual findings relating to the issue must be "presumed to be correct in a federal habeas corpus proceeding." 28 U.S.C. § 2254(e)(1); Miller v. Fenton, 474 U.S. 104, 112 (1985). This presumption applies to facts, such as the "length and circumstances of [an] interrogation" or whether "the police engaged in the intimidation tactics alleged by the defendant," that underline a state court's legal ruling. Id. at 112, 117; see also Thompson v. Keohane, 516 U.S. 99 (1995) (voluntariness of a confession is a question of law, "what happened" issues are entitled to presumption of correctness).
A habeas petitioner may, rebut the presumption of correctness only upon a showing, by clear and convincing evidence, that the state court's factual finding is not supported by the record or is otherwise clearly meowed.See 28 U.S.C § 2254(e). In such a situation, a habeas court would be free to make its own factual determinations. See e.g.,Williams v. Bartlett, 44 F.3d 95 (2d Cir. 1994).
The Supreme Court has held that the "right to counsel" recognized inMiranda "require[es] the special protection of the knowing and intelligent waiver standard," Edwards v. Arizona, 451 U.S. 477, 483 (1981), If the suspect effectively waives his right to counsel after receiving his Miranda warnings, law enforcement officers are fee to question him. North Carolina v. Butler, 441 U.S. 369, 372-273 (1979), If a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation,Edwards v. Arizona, 451 U.S. at 484-485.
The invocation of the Miranda right to counsel "requires, at a minimum, some statement that can reasonably be constructed to be an expression of a desire for the assistance of an attorney," McNeil v. Wisconsin, 501 U.S. 171, 178 (1991), If a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, Supreme Court precedents do not require the cessation of questioning. Id. ("The likelihood that a suspect would wish counsel to be present is not the test for applicability of Edwards"); Edwards v. Arizona, 451 US. at 485 (impermissible for authorities "to re-interrogate an accused in custody if he has clearly asserted his right to counsel").
In Davis v. United States, 512 U.S. 452 (1994), the Supreme Court declined to extend Edwards and require law enforcement officers to cease questioning immediately upon the making of an ambiguous or equivocal reference to an attorney. The Davis Court held that "after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney," Id. at 461, The Davis Court declared that the defendant's comment "Maybe I should talk to a lawyer" was not an unequivocal invocation of the right to counsel that required law enforcement officers to cease questioning. Id. at 462.
The Court held that, "when a suspect makes an ambiguous or equivocal statement it will often be good police practice for the interviewing officers to clarify whether or not he actually wants an attorney.Id. at 461, It expressly "declined to adopt a rule requiring officers to ask clarifying question." Id. at 461-462. Thereafter, in Diaz v. Senkowski, 76 F.3d 61 (2d Cir. 1996), the Court of Appeals for the Second Circuit explicitly followedDavis, and held that the defendant's statement — "Do you think I need a lawyer?" — did not effectively result in defendant asserting his right to counsel. Diaz v. Senkowski, at 66.
The state court ruled that petitioner's statement here is similar to those in Diaz, 76 F.3d 61. Petitioner asked the detective "Should I call my lawyer" (Hcin: H 24). He never asserted affirmatively that he wanted a lawyer or wanted the detective to get him a lawyer. Thus, the state court's ruling that petitioner's query was not sufficient to invoke his right to counsel was not contrary to, or an unreasonable application of, Supreme Court precedent.
An examination of petitioner's actions leading up to his exchange with Hein clearly shows that petitioner may have thought about getting a lawyer but decided not to contact one. Although petitioner asked his friend to get his lawyer's card (Johnson: H 92-93, 97-98; Petitioner: I-I 111-113), he did not ask him to call his lawyer. Nor did petitioner ask his friend for the lawyer's number, when he spoke to him over the phone, so that he could call the lawyer himself before surrendering to the police. At the precinct, although petitioner produced the card he never asked Detective Hein to call a lawyer or stated that he wanted to call a lawyer.
Hem advised petitioner of his Miranda rights in the form of six questions. All but two of the Miranda warnings covered petitioner's right to a lawyer (Hein: H 19-20), Petitioner, therefore, had four more opportunities to unequivocally ask for a lawyer and assert his right to consult a lawyer, but he never did so. The record confirms that petitioner never unequivocally requested a lawyer.
Petitioner was no neophyte. See Stein v. New York, 346 U.S. 156, 185-186 (1953), He had been convicted of weapons possession and received a state prison term. He also had been convicted of Attempted Possession of Burglars Tools, and bad received two youthful offender adjudications for Petit Larceny (Pre-sentence report:2), Given petitioner's criminal record, he was sufficiently sophisticated to express his desire for a lawyer if he had wanted one.
This claim has no merit.
B.
Petitioner, in two separate motions pursuant to section 440.10 of the New York Criminal Procedure Law, claimed that his trial counsel had been ineffective. The 440 court rejected those claims and held that counsel had provided effective representation, This decision is entitled to deference. Because the 440 court twice adjudicated the merits of petitioner's ineffective-assistance-of-counsel claim, the writ can only issue if petitioner shows that the state court's decision was contrary to, or an unreasonable application of, established Supreme Court law. Petitioner, has not made such a showing.
In its first decision dated September 6, 2002, the 440 court stated that in order to rule upon petitioner's ineffective-assistance-of-counsel claim, it had "reviewed the trial transcript and examined the unique circumstances of the case before it." The court concluded that based on counsel's performance at trial "defendant was not deprived of his right to the effective assistance of counsel at the trial of the indictment."See Decision dated September 6, 2002 at 5-7. In its second decision dated May 16, 2002, the 440 court again ruled that defendant had not established that he was denied meaningful representation by counsel.See decision dated May 16, 2002.
Petitioner's ineffective-assistance-of counsel is governed byStrtickland v. Washington, 466 U.S. 668 (1984), See Williams v. Taylor, 529 U.S. at 390, To establish a claim of ineffective assistance of counsel under Strickland, a defendant must show that counsel supplied deficient representation and that the defendant suffered prejudice as a result. Unless a defendant can show that there was no "legitimate reason" to pursue a particular strategy, counsel must be presumed to have rendered adequate assistance, Strickland v. Washington, 466 U.S. at 690, Counsel is "strongly presumed" to have rendered adequate assistance and to have made all significant decisions in the exercise of reasonable professional judgment. Id. at 688;United States v. Cronic, 466 U.S. 648, 658 (1984), A reviewing court should make every effort "to eliminate the distorting effects of hindsight" in assessing counsel's performance and "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable assistance." Strickland. Washington, 466 U.S. at 689.
In rejecting petitioner's claim, the court relied on, among other cases, People v. Baldi, 54 N.Y.2d 137, 444 N.Y.S.2d 893 (1981), that holds that "[s]o long as the evidence, the law, and the circumstances of a particular case, viewed in totality and as of the time of the representation, reveal that he attorney provided meaningful representation, the constitutional requirement will have been met. People v. Baldi, 54 N.Y.2d at 147, 444 N.Y.S.2d at 898. This standard is not contrary to that in Strickland.See Eze v. Senkowski, ___ F.3d 2003 U.S. App. LEXIS 2511 (Feb. 12, 2003); Loliscio v. Goord, 263 F.3d 178, 191 (3d Cir. 2001); Lindstandt v. Keane, 239 F.3d 191 (2d Cir. 2001). The Baldi standard is not different, opposite in character or nature, or mutually opposed to the standard articulated in Strickland.William v. Taylor, 529 U.S. at 404.
Trial counsel provided objective, reasonable assistance, and met the "performance test" of Strickland, when he effectively assisted petitioner by presenting petitioner's justification defense. Counsel vigorously represented petitioner in preliminary motion practice, at the pretrial hearing, and at trial. Trial counsel forcefully cross-examined witnesses, and delivered a strong closing argument on petitioner's behalf, arguing self-defense. In so doing, counsel did not fall below the constitutional standard of reasonable, objective, effective assistance. Trial counsel did not commit errors so serious as to undermine the proper functioning of the adversarial process, or cause any justifiable fears that the trial court not be relied on as having produced a just result. See Strickland v. Washington, 466 U.S. at 686. His representation also passed the "prejudice" test announced in Strickland, for the result in petitioner's case would not have been more favorable had counsel adopted a different strategy.
The record establishes that the defense counsel exhibited an adequate knowledge of criminal law, and advanced plausible theories of defense that were established through legitimate trial tactic.
Petitioner contends that counsel failed to adequately investigate a defense witness who saw petitioner, after the shooting, running down the street saying to himself "this was a mistake," to call a witness who would have testified that the deceased's mother had told her that he deceased had left home with a gun shortly before the shooting, and to call a ballistic expert to determine the type of gun that was used to kill the deceased. Based on his second C.P.L, § 440 motion, petitioner claims that his counsel was ineffective because he failed to investigate or question the arresting detectives about the presence of an assistant district attorney at the precinct, and, petitioner's asking mat assistant district attorney to call his lawyer. Petitioner fails to support these claims.
First, petitioner claims, as he did in his first motion pursuant to C.P.L. § 440.10, that his trial counsel was ineffective because he failed to investigate a witness, Marjorie Burns, who would have testified that she heard a gun shot, went outside her home, and saw petitioner running while he repeated "this was a mistake," Had defense counsel elicited this proposed testimony from Burns, then the prosecutor could have argued that petitioner's statement — "this was a mistake" — was an admission of guilt. In addition, it is likely that counsel made a strategic decision not to call Burns as a witness: mere is little question that he was fully aware of the statement since it was included in a police report in counsel's possession, Counsel's decision not to call Burnes as a witness was appropriate as trial strategy.
Second, petitioner claims that his counsel was ineffective because he failed to elicit favorable evidence during his cross-examination of Beverly Hailey, who allegedly would have testified that the deceased's mother had stated immediately after the crime that the deceased had left her home with a gun shortly before the incident. The evidence would have been inadmissible hearsay under New York law. See Nucci v. Proper, 95 N.Y.3d 597; People v. Maher, 89 N.Y.2d 456; People v. Nieves. On direct examination of Hailey, counsel attempted to elicit Mrs. Patterson's post-shooting statements, but was unable to do so except in a limited way. More importantly, the jury was already aware of the deceased's possession of a weapon, In that regard, Officer Guiffre, the first officer a the murder scene testified that he saw Robert Patterson lying in a pool of blood and that when EMS officers ripped his shirt open, Guiffre saw a holster and a gun under Patterson's arm (Guiffre: T-284, 289). Thus, defense counsel was not ineffective for any failure to elicit inadmissible testimony the substance of which was already before the jury, and the state court's rejection of this claim did not contravene or unreasonably applyStirckland's dictates.
Third, petitioner claims that his counsel was ineffective because he failed to call a weapon or ballistic expert in order to determine the type of weapon that was used to kill the deceased and to prove that prosecution eyewitness Smith was lying. Trial counsel could appropriately have determined that a ballistic expert was not necessary. Because petitioner testified at the trial, admitted shooting the deceased, and stated that it was done in self-defense, the type of weapon used by petitioner was not relevant.
Finally, in his second motion pursuant to C.P.L, § 440.10, petitioner claimed that his trial counsel was ineffective because he failed to investigate or question the arresting detectives about the presence of an assistant district attorney at the precinct and petitioner's purported request made to that assistant district attorney to call his lawyer. As evidenced by the sworn affirmation of former Assistance District Attorney William Nolan, (see Respondent's Supplemental Affirmation in Opposition of Defendant's Motion to Vacate Judgement Pursuant to C.P.L. § 440.10, Exhibit A), although he responded to the 113th Precinct after petitioner was arrested, petitioner never requested an attorney in his presence. Although petitioner testified on his own behalf both at the suppression hearing and at the trial, he never mentioned the presence of an assistant district attorney or that he asked prosecutor to call a lawyer.
This series of claims has no merit.
C.
Petitioner claims that the State's international withholding of autopsy-receipt/ballistic evidence was a violation of his Brady right to "pre-trial discovery." Petitioner also claims, as he did in his second motion pursuant to CP.L, § 4410.10, that the State's failure to inform the defense that an assistant district attorney had visited the precinct after his arrest constituted a Brady violation.
Petitioner's claim regarding the failure to turn over the autopsy-receipt/ballistic evidence is procedurally barred from review because, in state court, petitioner claimed that the failure to provide this evidence/document was a violation only of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, cert. denied, 368 U.S. 866 (1961), Petitioner never asserted his currentBrady claim in state court.
The Rosario claim does not present a cognizable federal claim. Federal courts "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added); gee Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (in habeas corpus proceedings, federal courts are limited to deciding whether a state court erred as a matter of state law does not present a federal question reviewable in a habeas corpus proceeding, See e.g., Pulley v. Harris, 465 U.S. 37, 41 (1984) (a federal court may not issue a writ of habeas corpus on the basis of a perceived error of state law.
The trial court specifically found that the People had provided petitioner with a "Report of Autopsy" and "receipt for autopsy evidence . . . two months prior to the commencement of the trial."See Court's Decision, dated September 5, 2001, at p, 4, The finding of fact by the state court is entitled to a "presumption of correctness" under 225 4(e). The trial court further held that "because all documents required to be disclosed to defendant were served upon him, defendant's argument that there was a reasonable probability mat the failure to turn over such `Rosario' material contributed to the verdict against him, is misapplied in this case." See Court's Decision, dated September 5, 2001, at p. 4. This finding of fact is entitled to deference in this Court's habeas corpus review, 28 U.S.C. § 2254(e)(1), That document was not Brady material. There is nothing in the document that was exculpatory.
This claim has no merit.
D.
Petitioner's contends that the prosecution used false testimony, He points to the purported failure of the People to turn over the ballistic/autopsy receipt pursuant to People v. Rosario, and argues that such a failure impacted on the credibility of People's eyewitness Bennie Smith. See Petitioner's 440 Motion Dated September 25, 2001 at 24, 26, 28-32, Petitioner has failed to show that Smith's testimony at the trail regarding the weapon was false or that the prosecutor knowingly presented false testimony.
The state court adjudicated petitioner's claims on the merits. Its determination is entitled to the deferential standard of review under section 2254(d).
This claim has no merit.
E.
Petitioner claims that new evidence establishes that the outcome of the trial would have been different and would have shown that he was actually innocent of the crime of murder. Petitioner's claim of actual innocence does not present a federal constitutional question upon which federal habeas corpus review can be premised. Absent an independent constitutional violation occurring in the underlying state criminal proceeding, a claim of actual innocence based on newly discovered evidence does not present a ground for habeas corpus reliefHerrera v. Collins, 506 U.S. 390, 400 (1993); see also Townsent v. Sain, 372 U.S. 293, 317 (1963) ("the existence merely of newly discovered evidence relevant to the guilt to fa state prisoner is not a ground for relief on federal habeas corpus");Coogan v. McCaughtry, 958 F.2d 793, 801 (7th Cir.), cert. denied, 506 U.S. 986 (1992) (as a general rule, newly discovered evidence that bears only on the questions of guilt or innocence is not re viewable by a federal court on a motion for habeas corpus relief). This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution, not to correct errors of fact. Herrara v. Collins, 506 U.S. at 400.
Petitioner claims, as he did in his first motion pursuant to N.Y.C.P.L, § 440.10 motion, that after his conviction, one of the People's witnesses at trial — Mr. Bennie Smith — told a person named William Ritter that he did not see petitioner shoot the deceased. In his motion in state court, petitioner attached an affidavit by William Ritter to support his claim. In making this claim here, petitioner has failed to point to any violation of his federal constitutional rights. Any ruling by this court that this claim of actual innocence constituted a federal constitutional violation in itself would be creating a new rule of constitutional law, which cannot be applied for the first time on collateral review under Teague v. Lane, 489 U.S. 288 (1989). Petitioner's claim that he is actually innocent is not cognizable in an application for federal habeas corpus relief. There is no substantial evidence of innocence presented.
On the merits, the state courts considered this argument and rejected it. The decision was reasonable.
This claim lacks merit.
F.
No other claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appeal ability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.