Opinion
02-CV-5258 (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 September 23, 2002. Petitioner (sometimes referred to as defendant) claims:
1) Trial judges abuse of discretion in limiting cross — examination of sole witness violated defendant[']s 6th and 14th constitutional amendment rights. Pre-trial motion denied seeking complainant[']s psychiatric records; also precluding questioning to such. During trial, mental infirmities of complainant became main issue to credibility — no physical evidence obtained by [the] People. Trial judge then further orders defense counsel that "no medical [ sic] with regards to condition" testimonial illicitation [ sic] will be allowed.
2) Trial counsel performed below acceptable standards. Held Huntley hearing and did not have defendant testify, persuaded/demanded he not. Failed to adequately [ sic] prepare; didn't seek expert testimony; allowed [the] People to introduce inflammatory evidence not related to alleged offense. Forfeited defendant[']s Brady rights; failed to demand [the] People's Rosario compliance; never raised serious search and seizure issues or illegal arrest issues, pre-trial automatic counsel attachment issues — all supported factually by trial record; etc.
The evidence supports the following statements:
Petitioner, Matthew Delio, was indicted by a Suffolk County Grand Jury. In Indictment 1747-98 he was charged with: rape in the first degree (count one; forcible compulsion); sodomy in the first degree (count two; forcible compulsion); rape in the third degree (count three; victim less than 17 years old); sexual abuse in the first degree (count five; forcible compulsion); criminal possess of stolen property in the fourth degree (count six); unlawful imprisonment (count seven); and endangering the welfare of a child (count eight).
A pre-trial Huntley hearing was conducted during November, 1998, and the trial of this case took place during January, 1999. Before either of these events defense counsel requested the production of the victim's medical records for use during cross — examination. This may have been an ex parte oral application.
On October 28, 1998, the trial court issued a written decision concerning the victim's medical records. The court stated that it had reviewed the records at defense counsel's request to see if they contained any material ". . . relating to issues of the witnesse[s] credibility, reliability, and ability to perceive and recall for cross — examination purposes." The court held that there was no information in the medical records that could be used for those purposes. Petitioner's request to review the records was, therefore, denied.
The trial evidence established that the complainant — Faith Zeph — was fourteen (14) years old in July, 1998. She was a patient living at South Oaks Hospital. On My 18, 1998, she and another teenage patient — Jean Knowelton — ran away from the hospital to meet Faith's boyfriend Jessie in Central Park. They met Jessie and spent the night sleeping on a bench in the park. The next morning they intended to take a train to Bear Mountain, where Jessie lived.
On the way out of the park the trio met petitioner, whom Jean Knowelton asked for a cigarette. During the introductory conversation, Faith Zeph told petitioner that she was fourteen (14) years old, and he told her that he was twenty-two (22). Petitioner agreed to drive the group to Bear Mountain.
Petitioner's confession and Faith Zeph's trial testimony agree on all the salient facts about the rest of that day (July 19th), through the next morning (July 20th), except that petitioner maintained that no force was used during their sexual relations. They agree that they went to Bear Mountain, but that Faith and Jen could not stay there. Petitioner then drove Faith and Jen to Lake Grove where they went to faith's friend Dawn's house. There they met Dawn and her boyfriend Mike.
Petitioner drove the two couples around the area and eventually stopped and bought beer at a 7-Eleven store. Everyone but petitioner was less than eighteen (18) years old. The group then went to a park where they drank the beer. Faith Zeph recalled drinking a forty — (40) ounce beer and becoming intoxicated. Eventually petitioner, Faith Zeph and Mike left the park to take Mike home.
They dropped Mike off in Selden and then stopped at a closed beer distributor. Faith left the car to relieve herself and when she returned, petitioner started to make amorous advances toward her. Faith got out of the car and used a nearby pay phone to call 911. Petitioner interrupted the phone call, made Faith get back in the car, and then drove to a location near Bald Hill monument. According to Faith, at this location petitioner forced her to engage in the acts underlying the convictions. According to petitioner, their sexual encounter was consensual.
After jury trial, petitioner was convicted of rape in the first degree (count one), rape in the third degree (count three), sexual abuse in the first degree (count five), and endangering the welfare of a child (county eight). Count six of the Indictment — criminal possession of stolen property — was dismissed and never presented to the jury.
After trial, but before sentencing, petitioner moved for an order of dismissal and to set aside the jury verdict. He again argued, among other things, that he should have been granted access to the complainant's psychiatric records. The court relied on its decision of October 28, 1998, and again denied defendant relief.
Petitioner was sentenced, as a second felony offender, on March 1, 1999, to serve four (4) concurrent terms of incarceration. He was sentenced to serve twenty-five (25) years for the first — degree rape conviction, four (4) years for the third — degree rape conviction, seven (7) years for the first — degree sexual abuse conviction, and one (1) year for the endangering the welfare of a child conviction.
Petitioner appealed his judgment of conviction to the Appellate Division, Second Judicial Department. The issues raised by counsel were: whether defense counsel was ineffective due to an alleged failure to let petitioner testify at trial; whether the jury verdict was against the weight of the evidence; and whether evidence of the complainant's use of drugs should have discredited her testimony.
In May 2000, petitioner moved to file a pro se supplemental brief. The motion was granted on June 30, 2000.
In his supplemental brief, petitioner argued that: the trial judge both erroneously denied him access to the victim's psychiatric records and erroneously limited his cross — examination on this issue; the prosecutor's summation amounted to misconduct; trial counsel was ineffective because he did not obtain some discovery material, he did not call a doctor as a witness to the victim's medical condition, and because a stipulation regarding the victim's use of cocaine and alcohol was insufficient; and he was denied his right to be present at all material stages of the trial.
Petitioner's judgment of conviction was affirmed. He was denied leave to appeal to the Court of Appeals. The intermediate appellate court did not specifically address petitioner's argument regarding Ms. Zeph's medical records, but held that the issue was either unpreserved for appellate review or was without merit. Since respondent did not argue that this issue was unpreserved, it now urges that the appellate court reviewed this issue and held that it was without merit. The court did not write abut the ineffective assistance of counsel claim. Respondent contends there was no preservation argument interposed regarding this issue, so the Appellate Division found that it was without merit.
On April 15, 2001, petitioner wrote to the State of New York Court of Appeals and requested permission to appeal to that court. He indicated that he wished to raise issues regarding the denial of access to the victim's psychiatric records, the denial of his discovery demands, and the effectiveness of counsel. He further alleged that he was denied his Sixth Amendment right to confront the witness because he did not have her medical records.
On May 10, 2001, petitioner sent a second letter to the New York State Court of Appeals and inter alia, more fully presented his argument regarding the effective assistance of trial counsel. He was denied leave to appeal on June 21, 2001. See People v. Delia, 281 A.D.2d 640, 722 N.Y.S.2d 182 (2nd Dept). lv. to app. denied, 96 N.Y.2d 861, 730 N.Y.S.2d 35 (2001).
There is, apparently, a motion to vacate his judgment of conviction (New York CPL § 440.10) still pending in the County Court of Suffolk County. Petitioner's motion was filed on or about September 24, 2002.
Petitioner moved to vacate his judgment of conviction pursuant to New York CPL § 440.10(1)(b). He maintained that the judgment against him was obtained by the use of duress, misrepresentation or fraud because the prosecutor withheld information about the complainant's mental health history. This information could have been used, he claims, to undermine the complaining witness's credibility.
Petitioner moved to vacate his judgment of conviction pursuant to New York CPL § 440.10(1)(g). He claimed that his research uncovered articles from medical journals which prove that the medication taken by the complainant is used to treat not only depression but also schizophrenia. This, he argued, is newly discovered evidence which created a probability of a verdict more favorable to him. The Eli Lilly Company['s] twenty-seven (27) page description of Zyprexia — that petitioner attached as an exhibit to his motion — shows that the medication is used to treat Bipolar 1 Disorder, or manic depression. The complainant's medical records indicate that she took Zyprexia for depression. This information is part of the trial testimony. Respondent suggests that the pending state court motion is not germane to this petition since the issues presented were exhausted through the direct appeal.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that the adjudication of the claim "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim." Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)). Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part). Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state — court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright — line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, 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 U.S.C. § 2244(d)(1). This limitations period ordinarily begins to run on "the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review." Id. § 2244(d)(1)(A). A conviction becomes final for habeas purposes when the 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 that the term "pending" includes the intervals between a lower court decision and a filing in a higher court for motions for collateral review). A motion for extension of time to file an appeal does not toll AEDPA's limitations period unless an extension is actually granted. See Bertha v. Girdich, 293 F.3d 577, 579 (2d Cir. 2002).
The period of limitations set forth in AEDPA ordinarily does not violate the Suspension Clause. See Muniz v. United States, 236 F.3d 122, 128 (2d Cir. 2001) ("[T]he Suspension Clause does not always require that a first federal petition be decided on the merits and not barred procedurally" (quotation omitted)); Rodriguez v. Artuz, 990 F. Supp. 275, 283 (S.D.N.Y. 1998) (AEDPA statute of limitations is not, "at least in general," an unconstitutional suspension of the writ).
A pro se litigant is accorded "some degree of latitude" in meeting filing requirements. Brown v. Superintendent, 1998 U.S. Dist. LEXIS 1936, No. 97 Civ. 3303, 1998 WL 75686, at *4 (S.D.N.Y. Feb. 23, 1998). But "[it] has long been recognized that ignorance does not excuse lack of compliance with the law." Velasquez v. United States, 4 F. Supp.2d 331, 334-35 (S.D.N.Y. 1998) (holding that Bureau of Prison's failure to notify prisoners regarding AEDPA's time limitation did not warrant acceptance of untimely petition); see also Brown, 1998 WL 75686 at *4 ("self — serving statement that the litigant is ignorant of the law is not grounds for equitable tolling of a statute of limitations"),
The Supreme Court held in Duncan v. Walker that "an application for federal habeas corpus review is not an `application for State post — conviction or other collateral review' within the meaning of 28 U.S.C. § 2244(d)(2)," and that therefore the section does "not toll the limitation period during the pendency of [a petitioner's] first federal habeas petition." 533 U.S. 167, 181-82 (2001). Duncan reversed a case in this circuit which held to the contrary. See Walker v. Artuz, 208 F.3d 357, 361-62 (2000). Although the Supreme Court has now declared that AEDPA's one-year limitations period is not tolled during the pendency of a properly filed federal habeas petition, this statute of limitations is not jurisdictional and may be tolled equitably. Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir. 2000). "Equitable tolling . . . is only appropriate in `rare and exceptional circumstances.' To merit application of equitable tolling, the petitioner must demonstrate that he acted with `reasonable diligence' during the period he wishes to have tolled, but that despite his efforts, extraordinary circumstances `beyond his control' prevented successful filing during that time." Smaldone v. Senkowski, 273 F.3d 133, 138 (2d Cir. 2001).
Although state prisoners are not entitled to counsel as of right in either New York state collateral or federal habeas corpus proceedings, the Court of Appeals for the Second Circuit has stated that "an attorney's conduct, if it is sufficiently egregious, may constitute the sort of `extraordinary circumstances' that would justify the application of equitable tolling to the one-year limitations period of AEDPA." Baldayaque v. United States, 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, 168 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. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review." Fama v. Comm'r of Corr. Svcs., 235 F.3d 804, 810 (2d Cir. 2000). Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required," Id.
VI. Actual Innocence
"[A] habeas petitioner may also bypass the independent and adequate state ground bar by demonstrating a constitutional violation that resulted in a fundamental miscarriage of justice, i.e., that he is actually innocent of the crime for which he has been convicted." Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002).
Because habeas corpus "is, at its core, an equitable remedy," Schlup v. Delo, 513 U.S. 298, 319 (1995), the Supreme Court has stated that "in appropriate cases, the principles of comity and finality that inform the concepts of cause and prejudice must yield to the imperative of correcting a fundamentally unjust incarceration," id, at 320-21 (quotations omitted). To ensure that this exception remains rare and will be applied only in the extraordinary case, the Court has "explicitly tied" the miscarriage of justice exception to the petitioner's innocence. Id. at 321. "To be credible, such a claim requires petitioner to support his allegations of constitutional error with new reliable evidence . . . that was not presented at trial. Because such evidence is obviously unavailable in the vast majority of cases, claims of actual innocence are rarely successful." Id, at 324.
A showing of actual innocence serves merely as a gateway to the airing of the petitioner's defaulted claim and is not itself cognizable in habeas as a free — standing claim. See Herrera v. Collins, 506 U.S. 390, 400 (1993) ("[C]laims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding.") — A habeas court is, in short, concerned `"not [with] the petitioners' innocence or guilt but solely [with] the question whether their constitutional rights have been preserved.'" Id. (quoting Moore v. Dempsey, 261 U.S. 86, 87-88 (1923)); cf. Jackson v. Virginia, 443 U.S. 307 (1979) (habeas court may review an independent constitutional claim that the evidence adduced at trial was insufficient to convict a criminal defendant beyond a reasonable doubt); Thompson v. Louisville, 362 U.S. 199 (1960) (reversing conviction of "Shuffling Sam" on direct review from conviction in Louisville's police court where there was no evidence that defendant violated city ordinances).
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 tinder Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective — assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective — assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
Although the Strickland test was formulated in the context of an ineffective assistance of trial counsel claim, the same test is used with respect to claims of ineffective appellate counsel. See Claudio v. Scully, 982 F.2d 798, 803 (2d Cir. 1992). Appellate counsel does not have a duty to advance every nonfrivolous argument that could be made, see Jones v. Barnes, 463 U.S. 745, 754 (1983), but a petitioner may establish that appellate counsel was constitutionally ineffective "if he shows that counsel omitted significant and obvious issues while pursuing issues that were clearly and significantly weaker," Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994). Either a federal or a state law claim that was improperly omitted from an appeal may form the basis for an ineffective assistance of appellate counsel claim, "so long as the failure to raise the state . . . claim fell outside the wide range of professionally competent assistance." Id. (quotations omitted).
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 U.S. 307, 319 (1979). Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree 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 (JEW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) (Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11045, at *5-*6 (E.D.N.Y. June 20, 2003) (Wade claims); Brathwaite v. Duncan, 00-CV-0860, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11056, at *4-*5 (E.D.N.Y. June 10, 2003) (Sandoval claims); Thomas v. Kuhlman, 255 F. Supp.2d 99, 108-09 (E.D.N.Y. 2003) (perjured testimony); Martinez v. Greiner, 99-CV-4663, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11046, at *7 (E.D.N.Y. June 20, 2003) ( Fourth Amendment claims); Plunkett v. Keane, 97-CV-1992, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11048, at *8-*9 (E.D.N.Y. June 10, 2003) (Rosario claims); Beniquez v. Bennett, 00-CV-0985, 03-MISC-0066 (JBW), 2003 U.S. Dist LEXIS 11032, at *15-*16 (E.D.N.Y. June 16, 2003) (prosecutorial misconduct); Sevencan v. Herbert, No. 01-2491, slip op. at 6-13 (2d Cir. Aug. 7, 2003) (public trial); Cox v. Donnelly, 99-CV-8216, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 9886, at *12-*14 (E.D.N.Y. June 12 2003) (shifting burden of proof); Jelinek v. Costello, 247 F. Supp.2d 212, 266-67 (E.D.N.Y. 2003) (right to self — representation); Stewart v. Senkowski, 00-CV-0806, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11028, at *6 (E.D.N.Y. June 16, 2003) (erroneous jury instructions); Jenkins v. Artuz, 98-CV-7837, 00-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11049, at *7-*8 (E.D.N.Y. June 13, 2003) (abuse of discretion in sentencing);
XII. Harmless Error
In order to be entitled to habeas relief, a petitioner must ordinarily demonstrate that any constitutional error "had substantial and injurious effect or influence in determining the jury's verdict," and that the error resulted in "actual prejudice." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quotation marks omitted).
When a claim was never adjudicated on the merits in the state courts and there is no ruling which commands AEDPA deference, it is unclear what the standard for review for harmlessness should be in a collateral attack when a federal court finds constitutional error. Should it proceed under the "beyond a reasonable doubt" standard of Chapman v. California, 386 U.S. 18 (1967) (conviction infected by constitutional error must be overturned unless "harmless beyond a reasonable doubt") or under the "substantial and injurious effect or influence" standard of Brecht (for cases on collateral review, an error is generally considered harmless if it did not have a "substantial and injurious effect or influence in determining the jury's verdict")? The correct standard of review is an open question in this circuit. See Cotto v. Herbert, No. 01-2694, 2003 U.S. App. LEXIS 8326, at *92 (2d Cir. May 1, 2003).
XIII. Analysis of Claims
A.
According to petitioner, he was denied his Sixth Amendment right to confront the victim because the trial court ruled that he could not examine her psychiatric medical records and also prevented trial counsel from questioning the victim about her use of a medicine used to treat depression. This issue was first raised in a pre-trial application by defense counsel. He requested that the trial court examine the victim's medical records and make those portions of the records that were relevant to the victim's ability to testify truthfully available to him. The trial court examined the records and found that none of them were relevant for cross — examination. During trial, defense counsel was also directed not to question the victim about her use of a medication that was referred to in her emergency room records.
Petitioner argued in his pro se supplemental brief that the decision of the trial court regarding these issues was wrong. Disclosure of psychiatric records is within the sound discretion of the trial court; such records "are to be disclosed only when their confidentiality is significantly outweighed by the interest of justice." People v. Duran, 276 A.D.2d 498, 713 N.Y.S.2d 561 (2nd Dept. 2000), quoting People v. Brooks, 199 A.D.2d 275, 604 N.Y.S.2d 219 (2nd Dept. 1993); People v. Toledo, 270 A.D.2d 805, 709 N.Y.S.2d 257 (4th Dept. 2000); see also, New York State Mental Hygiene Law § 33.13(c)(1). See also People v. Beckett, 186 A.D.2d 209, 587 N.Y.S.2d 753 (2nd Dept. 1992) (and extent of cross — examination lies within the sound discretion of the trial court).
In this case the trial court did conduct an in camera examination of the victim's psychiatric records, and then denied their use to petitioner. As adduced by the defense in its cross — examination of Jennifer Noveck, the emergency rom nurse who assisted in the examination of the victim, the victim had a history of depression for which she was taking a medication named Zyprexia. Depression does not comport with of a history of paranoia, hallucinations, delusions or false claims of sexual attack that would normally mandate disclosure. People v. Duran, supra; all also, People v. Byers, 254 A.D.2d 494, 679 N.Y.S.2d 838 (2nd Dept. 1998).
Although the Appellate Division did not specifically address this issue in its decision, the court held that the other (unaddressed) issues were either without merit or were unpreserved for appellate review. There was no argument that this issue was not preserved for review; the Appellate Division arguably held that this issue was without merit. Since the state trial court, at least, decided this issue, it is entitled to the deferential standard of review established in 28 U.S.C. § 2254(d), Sellan v. Kuhlman, 261 F.3d 303 (2nd Cir. 2001).
A defendant's Sixth Amendment right to confront adverse witnesses is guaranteed in both federal and state criminal proceedings. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The right includes both being allowed to physically confront the witnesses and the opportunity for cross — examination. Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). The right to confront witnesses and to cross — examine is not unlimited. Trial judges retain wide latitude to impose reasonable limits on cross — examination. Delaware v. VanArsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed2d 674 (1986). When the cross — examiner intends to utilize the contents of a confidential or privileged report, it is normal practice for the trial court to review the document in camera to ascertain if the report contains any relevant information for the purposes of cross — examination. Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40(1987).
Here, the trial court followed appropriate procedures. It examined the victim's confidential medical record and did not permit its use during cross — examination because it was, the court found, not relevant impeaching material. The state law on this issue mirrors the federal authority. There is no basis to conclude that the state's decisions are an unreasonable application of controlling federal authority.
Any error in the trial court's decision is harmless beyond a reasonable doubt. Delaware v. VanArsdall, 475 U.S. at 684 (Confrontation Clause errors subject to harmless error analysis).
The victim's testimony as to where she was taken by petitioner, the sequence of events, the locations of stops she made, and actions she took, such as the attempted 911 call, were borne out by physical evidence such as photographs, testimonial evidence, and by petitioner's four — page typed confession (attached as an Exhibit to Respondent's Brief, Exhibit H.), which concedes almost every detail of her testimony except for forcible compulsion. The trial court's refusal to either disclose the psychiatric records to the defense or allow their use for cross — examination was a proper exercise of discretion.
Even if the ruling of the court below was error, the error was also harmless in view of the overwhelming evidence of petitioner's guilt. See generally, People v. Morris, 153 A.D.2d 984 (3d Dept. 1989). Any error was mitigated by the fact [that] petitioner not only cross — examined Noveck about the victim's hospitalization, and examined the victim herself about her hospitalization (Trial Transcript at 197, 198 199, 201, 212, 212-213, 213, 214, 255, 256), but also summed up at some length about her condition, referring to her several times as "unstable."
The trial court's ruling on the point was as follows:
Upon defendant's request and in accordance with 42 U.S.C. § 4582 and 21 U.S.C. § 1175 Subpart E of 42 C.F.R. Part 2, this Court ordered (October 14, 1998) the production of medical records pertaining to Jane Doe (pseudonym used in accordance with the intent of 42 C.F.R. S2.64(a) and (g)(3).
On October 22, 1998, this Court received said records and reviewed same for the purpose of determining if any relevant material was contained therein relating to issues of the witness's credibility, reliability and ability to perceive and recall for cross — examination purposes, see, People v. Knowell, 127 A.D.2d 794 (2d dept. 1984); People v. Bugayong, 192 N.Y.S.2d 946 (1st Dept. 1987); People v. Collins, 660 N.Y.S.2d 946 (Sup. Ct, Bronx Co. 1997).
Upon review this Court has determined that no such information is contained therein and defendant's request to review the records and cross — examine the witness regarding such is denied.
There is no point in this court's calling for the medical records so it can review the matter of exercise of habeas discretion. The admissions by petitioner of sex with a 14-year-old established most of the elements of the non — consensual crime.
This claim has no merit.
B.
Petitioner claims he was denied the effective assistance of trial counsel. He maintains — without explanation or argument — that trial counsel did not let him testify, failed to adequately prepare for trial, did not obtain expert testimony, did not object to alleged (unidentified) inflammatory evidence, did not protect petitioner's Brady and Rosario rights, and did not contest certain search and seizure issues. These issues were raised through both counsel's and petitioner's pro se briefs in the Appellate Division. Deference is due the state court's rejection of this issue. Petitioner has not established that he was denied the effective assistance of counsel.
In order to overcome the strong presumption that trial counsel exercised acceptable judgment, the petitioner must establish both that trial counsel's performance was deficient and that he was prejudiced by trial counsel's actions or omissions. Strickland v. Washington, 466 U.S. 668, 800, 104 S.Ct. 2052, 2971, 80 L.Ed.2d 674 (1984). The Strickland standard is consonant with the AEDPA defense standard, 28 U.S.C. § 2254(d). Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct 1495, 1511, 146 L.Ed.2d 389 (2000).
Trial counsel was properly prepared. He conducted a pre-trial hearing to test the admissibility of petitioner's statements; he made both an effective opening statement and a cogent closing; he interposed correct objections and otherwise protected petitioner's trial rights; he conducted purposeful cross — examination; and he made appropriate pre — and post — trial motions to obtain the victim's medical records. There was no defense to the statutory rape charge. Petitioner admitted having sex with the victim and she was fourteen (14) years old. His contentions regarding her state of mind are irrelevant to his crime. Defense counsel properly defended petitioner against a strong case.
Defense counsel's representation was effective. There is no basis for concluding that petitioner was prevented from testifying. It is doubtful that testimony would have helped here. The jury was already informed through stipulation that complainant went to New York to ingest cocaine and alcohol.
This claim has no merit.
C.
Petitioner's other claims, such as Brady and Rosario violations, and search and seizure issues, are unsupported by any facts in the records. They do not provide any basis to conclude that trial counsel was ineffective or that trial court rulings were improper.
These claims have no merit.
D.
No other claim is more than frivolous. See, e.g., the trial court's full analysis after a hearing on People v. Huntley, 15 N.Y.2d 72 (1965), Order of December 14, 1998.Once the court ruled for sound reasons that petitioner's admissions were admissible, petitioner's fate was sealed. He admitted, after Miranda hearings, that he stole a car, picked up complainant and a friend, took the girls across state lines, and had anal and vaginal intercourse with one of them who he knew was only fourteen. That the penalty seems horrendous is not a basis for relief.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appealability is granted. Petitioner made no substantial showing of the possible denial of a constitutional right. He may, as already indicated, seek a certificate of appealability from the Court of Appeals for the Second Circuit.
SO ORDERED.