Opinion
05 Civ. 0600 (RMB)(FM).
April 27, 2006
REPORT AND RECOMMENDATION TO THE HONORABLE RICHARD M. BERMAN
I. Introduction
Petitioner Jose Cabrera ("Cabrera") brings this pro se habeas corpus proceeding, pursuant to 28 U.S.C. § 2254, to challenge his conviction, after a jury trial in Supreme Court, New York County, on one count each of Robbery in the First Degree and Criminal Possession of a Weapon in the Second Degree. (Pet. ¶¶ 1, 5). On October 1, 1998, Justice Bonnie Wittner, before whom the case was tried, sentenced Cabrera, in absentia, to an aggregate indeterminate prison sentence of seven to fourteen years. (Id. ¶¶ 3-4; Ans. ¶ 5).
In his petition, Cabrera raises a claim of ineffective assistance of counsel arising out of his trial attorney's failure to file a timely notice of appeal in Cabrera's absence. (See Pet. ¶ 12). For the reasons set forth below, I recommend that the petition be denied. Additionally, because Cabrera has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
II. Relevant Facts
I have relied principally on the Answer and Cabrera's memorandum of law for this factual summary, because a trial transcript has not been provided to the Court.
The People's proof at trial would have permitted a reasonable juror to find as follows:
At midnight on February 1, 1998, Cabrera and Cesar Guzman ("Guzman") entered an indoor parking garage at 350 East 79th Street in Manhattan, wearing ski masks. (Ans. ¶ 2). Armed with a loaded .357 Magnum firearm, Guzman ordered Lesley Faustin ("Faustin") and Castin Pierre ("Pierre"), the attendants at the garage, at gun point, to open the front gate, after which he confiscated Pierre's employee identification card and a remote control for the gate. (Id.). Guzman then placed his gun to Pierre's head and ordered both attendants to walk down two flights of stairs to the lower garage level. Cabrera accompanied Guzman and the two attendants. (Id.). Once there, Cabrera demanded the keys to a Porsche parked in the garage. When the attendants told him that the keys were upstairs, Cabrera ordered Faustin and Pierre to retrieve them. (Id.).
As this was taking place, another garage attendant drove into the garage and set off a bell on the lower floors. (Id. ¶ 3). Guzman then instructed Pierre to give him his employee jacket, which he donned. After telling Pierre to run, Cabrera and Guzman brought Faustin to the garage's main level. There, they were confronted by several police officers summoned by a nearby concierge, who had witnessed Cabrera and Guzman entering the garage. (Id.). Cabrera and Guzman fled back to the lower level where they attempted to hide. A few minutes later, Guzman ran out of the garage wearing Pierre's jacket and called out to the police, "they are inside, go get them." (Id.). Police Officer Annesi captured Guzman approximately two blocks from the garage after a chase. (Id.). Cabrera also was arrested several minutes later when he returned to the main level of the garage. (Id.).
The following day, a garage attendant found the .357 Magnum in a customer's car. (Id. ¶ 4).
On February 19, 1998, Cabrera and Guzman were indicted on numerous counts of robbery and criminal weapon possession. (Id. ¶ 5). Their joint trial began on August 4, 1998. (Id.; Pet'r's Mem. at 1). On August 10, 1998, while the People's case was still underway, Cabrera absconded, thereby forfeiting the $25,000 cash bail his family had posted. (Ans. ¶ 5 Ex. C at 2). Justice Wittner nevertheless continued the trial in Cabrera's absence. (Id. ¶ 5). On August 11, 1998, the jury returned a guilty verdict against Cabrera and Guzman on the charges of Robbery in the First Degree and Criminal Possession of a Weapon in the Second Degree. (Id.).
Thereafter, on October 1, 1998, Cabrera was sentenced, in absentia, to concurrent indeterminate sentences which, in the aggregate, amounted to a prison sentence of seven to fourteen years. (Id.). Cabrera was arrested and began serving this sentence on December 14, 2001, more than three years after he became a fugitive. (Pet'r's Mem. at 1).
B. Subsequent Procedural History
On or about December 17, 2001, Cabrera's trial counsel, who had been retained for that limited purpose only, filed a notice of appeal from the judgment of conviction. Additionally, Cabrera filed a pro se motion to proceed as a poor person with the Appellate Division, First Department. (See Ans. Exs. A, B).
On or about July 29, 2003, Cabrera wrote to the Appellate Division to inquire about the status of his appeal. (Id. Ex. B at 12). By letter dated September 10, 2003, a Deputy Clerk advised Cabrera that his notice of appeal had been denied as untimely, and that in order to appeal he would have to seek relief from the Appellate Division pursuant to New York Criminal Procedure Law ("CPL") Section 460.30. (Id. at 11). On or about September 26, 2003, Cabrera filed that motion, together with an application to proceed as a poor person. (Id. at 5-10). In support of his application for an extension of time, Cabrera alleged only that he believed that his counsel had filed a notice of appeal on his behalf but later determined that he had not. (Id. at 6). The People opposed Cabrera's motion, asserting that his extension application was untimely because it was not filed, as CPL Section 460.30 requires, within one year and thirty days after his conviction. (Id. Ex. C). On or about December 9, 2003, the Appellate Division, citing CPL Section 460.30, summarily denied Cabrera's motion. (Id. Ex. G). A renewed motion for similar relief was summarily denied by the Appellate Division on July 8, 2004, on the same ground. (Id. Exs. D-G).
On or about January 2, 2004, Cabrera filed a motion to vacate the judgment of conviction pursuant to CPL Section 440.10, alleging that his counsel had been ineffective because he failed to file a timely notice of appeal on his behalf. (Id. Ex. H). In his motion, Cabrera alleged for the first time that he "repeatedly" had stated to his lawyer before he absconded that he wished to appeal. (Id. at 3). Justice Wittner nevertheless denied Cabrera's CPL Section 440.10 motion on or about March 9, 2004, explaining that the relief sought related to an appeal and therefore could not be considered by the trial court. (See id. Ex. J).
C. Habeas Petition
Cabrera's pro se petition is dated October 27 and was received by the Pro Se Office of this Court on November 4, 2004; it later was filed on January 14, 2005. (See Pet. at 1). The sole ground for relief raised is that Cabrera allegedly was denied effective assistance of counsel, in violation of the Sixth Amendment, because his trial counsel failed to file a notice of appeal. (Id. ¶ 12).
III. Discussion
A. Standard of Review
A habeas corpus petition is not a vehicle to relitigate every issue previously determined in state court. Herrera v. Collins, 506 U.S. 390, 401 (1993). Instead, a state prisoner seeking habeas relief under § 2254 must show by a preponderance of the evidence that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petitioner thus has the burden of proving, by a preponderance of the evidence, that his rights have been violated. See Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997).
Section 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), provides, in part, that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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.28 U.S.C. § 2254(d)(1) (emphasis added).
As the Second Circuit noted in Jones v. Stinson, 229 F.3d 112, 119 (2d Cir. 2000), the Supreme Court has "construed the amended statute so as to give independent meaning to 'contrary [to]' and 'unreasonable.'" "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 [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). Under the "unreasonable application" clause, a federal habeas court should "ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409. This standard does not require that reasonable jurists would all agree that the state court was wrong. Id. at 409-10. Rather, the standard "falls somewhere between 'merely erroneous and unreasonable to all reasonable jurists.'" Stinson, 229 F.3d. at 119 (quotingFrancis S. v. Stone, 221 F.3d 100, 109 (2d Cir. 2000)).
Section 2254(d)(2) also authorizes the federal courts to grant a habeas writ when a claim considered on the merits in state court "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."
Finally, to the extent that a habeas petition challenges factual findings, Section 2254(e)(1) provides that: "a determination of a factual issue by a State court shall be presumed to be correct" and "[t]he [petitioner] shall have the burden of rebutting the presumption of correctness by clear and convincing evidence."
"If, after carefully weighing all the reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's custody . . . violates the Constitution, that independent judgment should prevail." Williams, 529 U.S. at 389.
B. Timeliness
The AEDPA imposes a one-year statute of limitations on habeas filings. See 28 U.S.C. § 2241(d)(1). Thus, a state prisoner ordinarily must commence his habeas proceeding within one year of the latest of several triggering events. Id. In this case, the only applicable provision requires a petitioner to bring his petition within one year of "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." 28 U.S.C. § 2244(d)(1)(A).
Under New York law, a criminal defendant seeking to appeal from a judgment of conviction must file a notice of appeal within thirty days of the imposition of sentence. CPL § 460.10(1)(a) (McKinney 2005). A petitioner who has failed to file a notice of appeal within the thirty-day deadline may move the appellate court within one year following the expiration of the thirty-day deadline for an order permitting him to file a late notice of appeal. CPL § 460.30(1) (McKinney 2005). This one-year period is jurisdictional and cannot be extended for any reason. People v. Thomas, 47 N.Y.2d 37, 42-43 (1979).
Here, Cabrera's judgment of conviction became "final" on October 31, 1998, thirty days after his sentencing in absentia on October 1, 1998. See Rodriguez v. State of New York, No. 01 Civ. 9374 (KMW)(AJP), 2003 WL 289598, at *11 (S.D.N.Y. Feb. 11, 2003) ("Under 28 U.S.C. § 2244(d)(1)(A), [petitioner's] state court judgment . . . became 'final' . . . when the 30-day period for filing a state notice of appeal from his judgment of conviction expired."); Cabrera v. New York, No. 03 Civ. 4692 (LTS)(FM), 2004 WL 759309, at *2 (S.D.N.Y. Mar. 30, 2004) (same). Nevertheless, Cabrera did not file a notice of appeal or seek leave to appeal out of time until December 17, 2001, more than two years after the deadline for seeking to file a late notice of appeal had expired.
By that time, Cabrera's time to file a timely habeas petition also had expired. See 28 U.S.C. § 2244(d)(1)(A). The AEDPA provides, however, for the tolling of the one-year limitations period during any time when "a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending." 28 U.S.C. § 2244(d)(2). Although Cabrera filed such a collateral motion pursuant to CPL Section 440.10 in the state courts, the tolling provision is of no help to him because his motion was filed on or about January 2, 2004, after the period for filing a timely habeas petition had expired. Cabrera also is not entitled to equitable tolling of the statute of limitations since his failure to discover that an appeal was not filed was the result of his own voluntary fugitivity. See, e.g., Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000) ("In order to equitably toll the one-year period of limitations, [a petitioner] must show that extraordinary circumstances prevented him from filing his petition on time.").
C. Procedural Default
There is an additional basis on which Cabrera's petition must be denied. A federal court is precluded from reviewing a claim raised in a petition for a writ of habeas corpus — even if that claim potentially is meritorious — if the judgment of the last state court to hear that claim was based on an adequate and independent state ground, such as a procedural default, unless the petitioner can demonstrate either "cause for the default and actual prejudice as a result of the alleged violation of federal law, or . . . that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman v. Thompson, 501 U.S. 722, 750 (1991);accord Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 809 (2d Cir. 2000). A procedural default in state court will bar federal habeas review, however, only if "the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989) (internal citation and quotations omitted);accord Fama, 235 F.3d at 809.
Here, the Appellate Division twice denied Cabrera's request for an extension of the time to appeal, citing CPL Section 460.30. (Ans. Exs. D, G; see also id. Ex. B at 11). The state court's express reliance on Cabrera's procedural default under that statute constitutes an adequate and independent state ground for the denial of his claim. See Harris, 489 U.S. at 265 n. 12;Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996); Harris v. Artuz, No. 99 Civ. 11229 (DLC), 2001 WL 435636, at *5 (S.D.N.Y. Apr. 30, 2001). Accordingly, Cabrera's claim cannot be considered unless he can show both cause for the default and actual prejudice or that the failure to consider his claim will result in a fundamental miscarriage of justice. See Coleman, 501 U.S. at 750.
To demonstrate cause, a petitioner must adduce "some objective factor external to the defense" which explains why he did not raise the claim previously. Murray v. Carrier, 477 U.S. 478, 488 (1986); Gonzalez v. Sullivan, 934 F.2d 419, 422 (2d Cir. 1991) (quoting Murray). The circumstances constituting cause may include: (i) interference by government officials making compliance impracticable; (ii) situations in which the factual or legal basis for a claim was not reasonably available to counsel; and (iii) ineffective assistance of counsel. See Murray, 477 U.S. at 488; Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (quoting Murray). A showing of prejudice requires a petitioner to demonstrate that the failure to raise the claim previously had a substantial injurious effect on his case such that he was denied fundamental fairness. Reyes v. State of New York, No. 99 Civ. 3268 (SAS), 1999 WL 1059961, at *2 (S.D.N.Y. Nov. 22, 1999). Finally to establish a fundamental miscarriage of justice, a petitioner must demonstrate that he is "actually innocent."Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001).
1. Cause
Assuming, arguendo, that Cabrera asked his counsel to file a notice of appeal in the event he was convicted after he absconded, he still has not shown any reason external to the defense why his lawyer's ineffectiveness could not have been timely presented to the Appellate Division as a basis for extending the time period for him to file an appeal. Indeed, had Cabrera voluntarily surrendered prior to the expiration of the one-year period, he presumably could have filed such an application under CPL Section 460.30, thereby avoiding the procedural bar to his present claim.
2. Prejudice
Cabrera's petition can also be read to suggest that the harm that he suffered was not attributable solely to his lawyer's failure to file a timely notice of appeal, but to his failure to raise in that appeal an as-yet unidentified issue which might have resulted in the reversal of his conviction. However, even if Cabrera were able to show adequate cause for his failure to bring counsel's omission to the attention of the state courts at an earlier time, he must show that counsel's error resulted in prejudice to escape the state procedural bar.
In Campusano v. United States, ___ F.3d ___, 2006 WL 751360, at *1 (2d Cir. Mar. 23, 2006), the Second Circuit recently considered whether a criminal defendant whose lawyer failed to file a requested notice of appeal is entitled to a presumption of prejudice or must make the further showing that his claims would have had merit in order to pursue a direct appeal. There, the defendant in a federal prosecution had entered into a plea agreement which contained a promise not to appeal or otherwise challenge a sentence within a stipulated range that the district judge in fact followed in imposing sentence. Writing for a unanimous court, Judge Sotomayor relied upon the Supreme Court's decision in Roe v. Flores-Ortega, 528 U.S. 470, 477 (2000), which held "that a lawyer who disregards [a defendant's] specific instructions . . . to file a notice of appeal acts in a manner that is professionally unreasonable." Id. at 477. On the basis of that decision, the Campusano court held that prejudice must be presumed even if the defendant waived his right to appeal as part of a plea agreement letter. Campusano, 2006 WL 751360, at *1. Accordingly, the case was remanded to the district court for an evidentiary hearing to determine whether the defendant had instructed his lawyer to file an appeal. If so, the Second Circuit directed, the defendant must "be allowed a direct appeal." Id. at *6.
Here, of course, as the prior procedural history establishes, direct review is no longer an option. Nevertheless, Campusano suggests that Cabrera might be entitled to a presumption of prejudice if he were able to establish that he, in fact, directed his attorney to appeal in the event of a conviction. While there are reasons why Campusano is distinguishable from the facts of this case (not the least of which is Cabrera's fugitivity), I have assumed for purposes of this Report and Recommendation that Cabrera could establish that he had a meritorious issue to be presented on direct appeal and that counsel's failure to file a notice of appeal thwarted his ability to present that issue to the state appellate courts. On that assumption, the remaining question is whether such an error by counsel entitles Cabrera to the issuance of a habeas corpus writ, a question which implicates the merits of Cabrera's petition.
D. Merits
In order to prevail on his ineffective assistance of counsel claim, Cabrera must demonstrate both that his counsel's performance "fell below an objective standard of reasonableness" and that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). Indeed, if a petitioner fails to meet either of the requirements for an ineffective assistance of counsel claim, the court need not consider the other one. Strickland, 466 U.S. at 697.
The Court need not address the quality of Cabrera's representation since he unquestionably is unable to establish that the outcome of his state post-conviction proceedings would have been different had his counsel filed a timely appeal. In fact, it is settled law that a criminal defendant, such as Cabrera, who voluntarily flees from the jurisdiction where he is being prosecuted lacks a due process right to have his appeal heard despite his fugitivity. See Allen v. State of Georgia, 166 U.S. 138, 140-41 (1897). In keeping with this principle, the practice in New York is to dismiss such appeals. See, e.g., People v. Perez, 38 N.Y.2d 904 (1976) (dismissing appeal by fugitive criminal defendant "upon the ground that [he] is not presently available to obey the mandate of the court in the event of an affirmance); People v. Del Rio, 14 N.Y.2d 165, 170 (1964) (appeal by Cuban prisoner who voluntarily left country as part of prisoner exchange dismissed because his "position as to his appeal is as if he had escaped or absconded"); Whitley v. Cioffi, 74 A.D.2d 230, 233-34 (1st Dep't 1980) ("it is well settled that the appellate process is generally not open to an absconding defendant for the simple reason that he is unavailable to obey the mandate of the court in the event his conviction is affirmed"); People v. Jackson, 64 A.D.2d 657 (2d Dep't 1978) (granting motion to dismiss appeal because criminal defendant had absconded); see also People v. Genet, 59 N.Y. 80 (1874) ("an escaped prisoner can take no action before the court"). While the respondent forthrightly notes that such appeals have occasionally been reinstated (see Resp't's Mem. at 18), Cabrera was arrested on December 14, 2001, more than three years after the statutory period for the filing of a timely notice of appeal had run. Cabrera has not drawn to the Court's attention any case in which an appeal was reinstated more than one year after the defendant became a fugitive. Accordingly, because it appears that Cabrera's appeal would have been dismissed under the fugitive disentitlement doctrine even if his attorney had filed the notice of appeal he requested, Cabrera has failed to show prejudice.
IV. Conclusion
For the foregoing reasons, I recommend that Cabrera's petition be denied. Additionally, because Cabrera has not made a substantial showing of the denial of a constitutional right, as required by 28 U.S.C. § 2253(c)(2), a certificate of appealability should not be issued.
V. Notice of Procedure for Filing of Objections to this Report and Recommendation
The parties are hereby directed that if they have any objections to this Report and Recommendation, they must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court, and send copies to the chambers of the Honorable Richard M. Berman, United States District Judge, at the United States Courthouse, 40 Centre Street, New York, NY 10007, to the chambers of the undersigned, at the United States Courthouse, 500 Pearl Street, New York, NY 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b). Any requests for an extension of time for filing objections must be directed to Judge Berman. The failure to file timely objections will result in a waiver of those objections for purposes of appeal. See Thomas v. Arn, 474 U.S. 140 (1985); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(e), 72(b).