Opinion
97 Civ. 7786
October 28, 2002
OPINION ORDER
On August 30, 2001, Magistrate Judge Debra Freeman issued a Report and Recommendation (RR) in the above-captioned case in which she recommended that this Court dismiss in its entirety the habeas petition ("petition") of Ronald Funderbird-Day ("petitioner"), brought pursuant to the Antiterrorism and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2254. Petitioner and the government each filed written objections to some portions of the RR within the statutory 10-day period. 28 U.S.C. § 636(b)(1); FRCP 72(b). In her RR of no less than 45 pages, Magistrate Judge Freeman included a detailed and accurate factual background to which the parties have offered no objection and with which familiarity is presumed. For the reasons set forth in detail below, petitioner's § 2254 habeas petition is denied.
Standard of Review
The Court may adopt those portions of an RR to which no specific objection is made, provided that those portions are not clearly erroneous. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). However, when an objection is made to a portion of a magistrate's report, the Court must make a de novo determination as to those portions. 28 U.S.C. § 636(b)(1); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989).
does not disagree, that 475 days passed from the time the judgment became final until the time that the instant petition was filed. I refer the interested reader to pages 15-16 of the RR for a breakdown of the calculation of the elapsed time. Although the petition was filed 110 days beyond the statutorily mandated deadline, an objection to the timeliness of the petition is without merit due to the granting of a Rule 60(b) motion. Specifically, petitioner initially filed a habeas petition on July 17, 1997, but withdrew that petition by requesting its dismissal upon realizing that his claims had not been exhausted in state court. After two § 440.10 motions were denied, he re-filed his habeas petition on May 17, 1999. On September 21, 2000, this Court construed petitioner's re-filed habeas petition as a motion pursuant to Rule 60(b) for relief from the Court's previous dismissal. Because this Court granted said motion, the instant habeas petition dates back to July 17, 1997, and is therefore within AEDPA's statute of limitations.
B. Petitioner's Objections 1. Prosecutorial Misconduct
Petitioner first objects to the Magistrate Judge's recommendation that this Court dismiss his prosecutorial misconduct claim.
The background to this claim is as follows. During petitioner's trial, the prosecution intended to call to the stand an individual named Carlos Perez, who was both an eye-witness and a victim of the several attempted murders for which petitioner had been indicted. However, before Perez testified, petitioner's counsel objected that the prosecution had failed to turn over Perez's arrest records to the defense. It subsequently came to light that the prosecution had promised to inform Perez's superiors of his cooperation, which was significant to Perez since he was then facing two criminal trials of his own. Notwithstanding this fact, Perez's testimony at petitioner's trial yielded no evidence that the prosecutor had made a firm promise to Perez that his criminal cases would be dismissed if he testified, or that Perez's eye-witness testimony was false. Nevertheless, petitioner argues that events subsequent to his trial support his claim that Perez's testimony was false, and that Perez did in fact receive a promise that his pending cases would be dismissed.
Petitioner's objection with respect to the Magistrate Judge's dismissal of his prosecutorial misconduct claim is without merit. Section 2254(d) of AEDPA states that "[a]n 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; 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." Section two must be read in light of § 2254(e)(1), which provides that "a determination of a factual issue made by a state court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence." 28 U.S.C. § 2254(e)(1). (emphasis added). Petitioner fails to show that the state court determination with respect to his prosecutorial misconduct claim was either "contrary to" or involved an `unreasonable application of' clearly established federal law.
The trial court determined that "there is no evidence proffered by the defendant that any firm promise was made and concealed. Accordingly, since there is no evidence of such a promise made prior to [Perez] testifying, there was nothing further to disclose, and hence, nothing was concealed." (Killian Aff. Ex. 14, at 1, 2). Petitioner does not object to the utilization of AEDPA's very deferential standard of review; rather, he objects to the factual determinations themselves, and must therefore present "clear and convincing" evidence to rebut the factual determination made by the state court that there was no firm promise, and consequently there was no false testimony given by Perez. Petitioner cannot meet this burden.
The evidence that petitioner presents to rebut the factual determination that there was no firm promise made and concealed is far from clear and convincing. Petitioner asserts that there is evidence of a firm promise from the statements made and actions taken by the trial judge with respect to Perez's pending narcotics case. First, petitioner claims that Judge Diaz's statement at Perez's hearing — namely, that he had previously made a promise to Perez with respect to a conditional discharge for testifying at petitioner's trial — indicates that Perez perjured himself to the knowledge of the prosecutors when he stated that he did not have expectations that his case would be dismissed. However, Perez did state at trial that he had some expectation of consideration for his cooperation in petitioner's prosecution. Indeed, it is commonplace to reward cooperators with reduced sentences, and the decision of a judge to do so for a defendant who testified on behalf of the prosecution in another case is not evidence that Perez's testimony at petitioner's trial was false. Further, Judge Diaz's statement at Perez's hearing could very likely have been referring to a colloquy that occurred the day of Perez's hearing, and not prior to petitioner's trial. Petitioner asserts that Judge Diaz's mention of a promise must imply that Perez, and therefore the prosecution, knew that Perez would be conditionally released for his cooperation in petitioner's trial. Short of advancing his interpretation of Judge Diaz's statements, petitioner fails to present any evidence to rebut the state courts' factual determination — much less evidence that is "clear and convincing."
Second, petitioner claims that the "extraordinarily" long period of adjournment of Perez's trial — fifteen weeks — is evidence of a firm promise. The only evidentiary support for this claim is a list of court appearances before Judge Diaz. Petitioner presents no other evidence or supporting case law to illustrate that adjournment for a longer than usual period of time has any relation to the existence of a firm promise. Clearly, petitioner's allegation with respect to the adjournment is far from "clear and convincing," and therefore does not warrant reaching a factual determination contrary to that of the state court. Thus, petitioner's objections to Magistrate Freeman's dismissal of claim one of his habeas petition are without merit.
2. Ineffective Assistance of Counsel
Petitioner likewise objects to the Magistrate Judge's dismissal of his ineffective assistance of counsel claim. Specifically, petitioner asserts that his constitutional rights were violated because his counsel failed to familiarize himself with Perez's hospital records and to request a missing witness charge for the arresting officer. With respect to the missing hospital records, petitioner contends that Perez's hospital records indicate that while hospitalized after the shooting, Perez stated that he was unaware of the shooter's identity. By contrast, at trial, Perez testified that petitioner was the shooter. For this reason, petitioner contends that his counsel was ineffective because he failed to familiarize himself with the records, thereby enabling him to impeach Perez's credibility. Second, petitioner asserts that his counsel should have requested a missing witness charge for the arresting officer, Detective Nieves.
The state court's rejection of petitioner's ineffective assistance of counsel claim satisfies both the independence and adequacy requirements to support the state procedural bar. The Supreme Court has determined that it is inappropriate to "review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment. . . . Because this Court has no power to review a state law determination that is sufficient to support the judgment, resolution of any independent federal ground for the decision could not affect the judgment and would therefore be advisory." Coleman v. Thompson, 501 U.S. 722, 729 (1991). (emphasis added). When a claim is barred on a state law ground that is both independent and adequate, the resolution of a federal question cannot affect the detention of the prisoner, and therefore "there is nothing for the Court to do." Id. at 730. a. Independence and adequacy
Continuing, the Court stated that
[i]n the habeas context, the application of the independent and adequate state ground doctrine is grounded with concerns of comity and federalism. Without the rule, a federal district court would be able to do in habeas what this Court could not do on direct review; habeas would offer state prisoners whose custody was supported by independent and adequate state grounds an end run around the limits of this Court's jurisdiction and a means to undermine the State's interest in enforcing its laws. Id. at 730.
On November 4, 1998, the trial court denied petitioner's second § 440.10 motion, in which he first raised the ineffective assistance of counsel claim, on the ground that this claim was not raised on direct appeal — and was, in any event, without merit. Section 440.10(c)(2) provides, in pertinent part, that
Notwithstanding the provisions of subdivision one, the court must deny a motion to vacate a judgment [under § 440.10] when
(c) Although sufficient facts appear on the record of the proceedings underlying the judgment to have permitted, upon appeal from such judgment, adequate review of the ground or issue raised upon the motion, no such appellate review or determination occurred owing to the defendant's unjustifiable failure to take or perfect an appeal during the prescribed period or to his unjustifiable failure to raise such ground or issue upon an appeal.
I find that the state ground for the procedural bar in the instant case is both independent and adequate, thereby barring federal habeas review. Although "state court opinions will, at times, discuss federal questions at length and mention a state law basis for decision only briefly," such is not the situation here. Id. at 732. Quite the contrary, it is clear from the trial court's opinion that the state ground was in fact the determinative factor. Specifically, the court ruled that petitioner's "claim of ineffective assistance is barred both under § 440.10 because it is clearly a matter o[f] record and would have been raised on direct appeal . . . and meritless in substance." (Killian Aff. Ex. 14 at 2). Because denial of petitioner's § 440.10 motion constitutes an independent state ground, this prong is satisfied.
Similarly, I also find that the "adequacy" prong is satisfied. In "determining the adequacy of a state procedural bar that precludes consideration of a federal claim, we should inquire whether there was a `fair and substantial basis' in state law for the default." Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999) (quoting Lawrence v. State Tax Comm'n, 286 U.S. 276, 282 (1932)). This Court should "not `inquire whether the rule applied by the state court is right or wrong, or substitute its own view of what should be deemed the better rule, for that of the state court.'" Demorest v. City Bank Farmers Trust Co., 321 U.S. 36, 42 (1944) (quoting Broad River Power Co. v. South Carolina, 281 U.S. 537, 540 (1930)). Consequently, as long as there is "fair and substantial" support in the case law for the state court's determination to declare that the claim is procedurally defaulted, this Court must accept the state court's determination, "whether right or wrong." Garcia, 188 F.3d at 78. In this case, petitioner has failed to persuade this Court to rule otherwise. Indeed, the law in this Circuit clearly supports the conclusion that there is a "fair and substantial" basis for declaring § 440.10(c)(2) an adequate procedural ground barring federal habeas review. See, e.g., Arce v. Smith, 889 F.2d 1271 (2d Cir. 1989) (petitioner's failure to bring claims on direct appeal constituted adequate grounds for procedural bar of habeas review); Veras v. Strack, 2000 WL 8249, at *1 (S.D.N.Y. Jan. 4, 2000) (Baer, J.) (stating that "CPL § 440.10(2)(c) is an adequate and independent state procedural ground barring federal habeas review"); Gaitor v. Lord, 917 F. Supp. 145, 149 (E.D.N.Y. 1996) ("failure to comply with Criminal Procedure L. § 440.10 is an independent and adequate state ground to dismiss a writ of federal habeas corpus").
At this juncture, it is appropriate to address petitioner's objection that "the trial judge's decision did not clearly identify which ineffective assistance claim was procedurally defaulted." (Petitioner's Objections to Magistrate's RR, at 2). This objection arises from the trial court's opinion with respect to petitioner's § 440.10 motion, which adverts to the "claim of ineffective assistance" rather than to multiple claims of ineffective assistance of counsel. Petitioner asserts that because he brought two claims rather than a single claim of ineffective assistance of counsel in his habeas petition, "Magistrate Judge Freeman's conclusion that `the two claims were treated as two aspects of an ineffective assistance claim,' is mere speculation and is inconsistent with Supreme Court precedent." Id. (citation omitted). The Supreme Court precedent to which petitioner refers provides for the requirement that the "last state court rendering judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 256 (1989) (emphasis added). Courts have found a violation of this principle in situations where the reliance on a state law ground was unclear from the last state court opinion. See e.g., Jones v. Stinson, 229 F.3d 112, 118 (2d Cir. 2000) (the state court "set forth the factual predicate for a finding of waiver but did not clearly state its intention to rely upon that state law ground"); Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992) ("the state court did not clearly and expressly state whether it had examined the merits of the missing witness claim or had relied on a procedural default. Therefore, the . . . claim is properly subject to federal habeas corpus review"). Here, there is no doubt that the state court relied on a state law ground that led to the procedural bar of federal habeas corpus review. The trial judge clearly stated that "the claim of ineffective assistance is . . . barred under § 440.10 because it is clearly a matter of record and would have been raised on direct appeal { See C.P.L. § 440.10(2)(c) and (3)(c)}." (Killian Aff Ex. 14 p. 2). Although the court mentioned the "claim" and not the claims, it is reasonable to conclude that the court treated the two different reasons petitioner advances for ineffective assistance of counsel under the generalized umbrella of the "claim of ineffective assistance of counsel."
Although petitioner has failed to demonstrate that the state procedural bar fails to satisfy the independence and adequacy requirement, he does have another avenue to pursue in order to overcome the procedural bar, namely, by demonstrating "cause for the default and actual prejudice as a result of the alleged violation of federal law, or [by demonstrating] that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 750; see also United States v. Frady, 456 U.S. 152, 168 (1982) ("errors to which no contemporaneous objection was made, a convicted defendant must show both (1) `cause' excusing his . . . procedural default, and (2) "actual prejudice" resulting from the errors of which he complains"); Wainwright v. Sykes, 433 U.S. 72, 84 (1977) ("review of the claim should be barred on habeas . . . absent a showing of cause for noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation"); Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985) ("a petitioner who has procedurally defaulted in state court must show both cause and prejudice in order to obtain federal habeas review").
b. Fundamental Miscarriage of Justice
"A fundamental miscarriage of justice occurs only in those "extraordinary instances when a constitutional violation probably has caused the conviction of one innocent of the crime. Rodriquez v. Mitchell, 252 F.3d 191, 204 (2d Cir. 2001) (quoting McCleskey v. Zant, 499 U.S. 467, 494 (1991)); see also Edwards v. Carpenter, 529 U.S. 446, 451 (2000) (petitioner must show a "sufficient probability that [the] failure to review his federal claim will result in a fundamental miscarriage of justice"); Schlup v. Delo, 513 U.S. 298, 329 (1995) (petitioner must make a "colorable showing" that "it is more likely than not that no reasonable juror would have convicted" petitioner); Sawyer v. Whitley, 505 U.S. 333, 339 (1992) (the fundamental miscarriage of justice exception is "concerned with actual as compared to legal innocence").
Petitioner clearly fails to satisfy this requirement. In Schlup, the Supreme Court stated that a court should grant such an exception only in the "extraordinary case." To establish actual innocence, a habeas petitioner must come forward with "new reliable evidence that was not presented at trial and show that it is more likely than not that no reasonable juror would have found [him] guilty beyond a reasonable doubt." Schlup, 513 U.S. at 299. "Habeas corpus petitions that advance a substantial claim of actual innocence are extremely rare" because they involve claims that there is evidence that the prisoner is innocent of the crime, and not simply that the prisoner can demonstrate procedurally deficiencies in his trial. Id. at 321. For instance, new statements of alleged eyewitnesses are sufficiently persuasive to determine that failure to hear the federal claim could result in a "fundamental miscarriage of justice." Id. at 331. This is a very narrow exception that is "explicitly t[ied]" to innocence, and requires a showing that petitioner "probably" did not commit the crime. Id. at 322.
The only new evidence presented by petitioner relates to Perez's false testimony with respect to promises allegedly received from the prosecution in exchange for his testimony. Such evidence is certainly insufficient for this Court to declare a fundamental miscarriage of justice. I agree with Magistrate Freeman's conclusion that "[n]ot only does this evidence have nothing to do with either of [petitioner's] ineffective assistance of counsel claims . . ., but, . . . `this new' evidence does not even demonstrate that Perez actually testified falsely at petitioner's trial" for the reasons detailed in part B.1 of this opinion. Consequently, in order to overcome the state procedural default, petitioner must demonstrate cause and prejudice.
c. Cause and Prejudice
Petitioner cannot demonstrate both the requisite "cause" for his procedural default and "prejudice" resulting therefrom. With respect to the "cause" prong, petitioner must show that "some objective factor external to the defense impeded counsel's efforts to raise the claim" in the prior petition. For example, "`a showing that the factual or legal basis for a claim was not reasonably available to counsel, . . . or that some interference by officials . . . made compliance impracticable, would constitute cause under this standard.'" Coleman, 501 U.S. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Case law in this Circuit suggests that, because ineffective assistance of counsel claims are better brought in § 440.10 motions rather than on direct appeal — the situation here — the cause prong may be satisfied in situations where petitioners bring such claims in § 440.10 motions rather than appeal. See, e.g., Charon v. Greiner, 1999 WL 477248. at *1 (E.D.N.Y. July 6, 1999) ("except where claims of ineffective assistance of counsel can be determined on the trial record, such claims must be brought in a C.P.L. § 440.10 motion); Senor v. Senkowski, 1999 WL 689477, at *4 (E.D.N.Y. Aug. 31, 1999) (finding cause for the procedural default on the ground that "[s]ection 440 motions usually serve as superior vehicles through which to raise ineffective assistance claims because it is often difficult to determine from the record on direct appeal whether the defense counsel justifiably took the course of action that forms the basis for the claim that his or her conduct fell below the minimum required by the Constitution"). However, regardless of whether petitioner has satisfied the "cause" prong, he simply cannot demonstrate the necessary prejudice to overcome the procedural bar. The Supreme Court has devised a two-part test to determine whether a petitioner received effective assistance of counsel. First, the petitioner must show that counsel's performance was deficient, that is, that it fell below an "objective standard of reasonableness" as measured under "prevailing professional norms." Strickland, 466 U.S. at 688. Second, the petitioner must affirmatively demonstrate prejudice by showing that "there is a reasonable probability that, but for counsel's [error], the result of the proceeding would have been different." Id. at 694. In other words, in demonstrating prejudice, petitioner "must shoulder the burden of showing, not merely that the errors at [his] trial created a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." U.S. v. Frady, 456 U.S. 152, 170 (1982). While there is no precise definition of prejudice, courts have offered several suggestions. See Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001) ("To satisfy the second, prejudice prong, the defendant must show that there is a reasonable probability that, but for the deficiency, the result of the proceeding would have been different. A reasonable probability is one sufficient to undermine confidence in the outcome of the trial or appeal" (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). I do not find that petitioner has demonstrated prejudice so as to overcome his procedural default.
Petitioner's ineffective assistance of counsel claim consists of two parts: a failure of counsel to familiarize himself with Perez's hospital records and a failure of counsel to request a missing witness charge. With respect to failure to review the hospital records, it is petitioner's contention that had his counsel done so, he would have been able to impeach the credibility of Perez. Aside from the fact that there is no indication that petitioner's counsel actually did fail to review the records, petitioner's counsel did cross-examine Perez with respect to certain inconsistent statements that he made before the grand jury as well as to the detective in charge of the investigation. Petitioner's counsel conducted a lengthy cross examination, and it certainly is reasonable to believe that counsel felt that confronting the witness with respect to a third inconsistent statement would be superfluous. Failure to impeach the credibility of Perez for a third time is far from an error so serious that counsel was not functioning in a manner guaranteed by the Sixth Amendment. Rather, petitioner's counsel's decision not to request the missing hospital records might very well have been a strategic decision that certainly does not rise to the level of ineffective assistance of counsel. In any event, even if I were to find that petitioner satisfied the first prong of the Strickland test by demonstrating that his counsel's actions were "deficient" or fell below prevailing professional norms, which I do not, I still do not find that he has satisfied the second prong of the Strickland test by showing that his counsel's actions prejudiced him. Indeed, as already mentioned, the jury was already aware that Perez had provided more than one inconsistent statement. Therefore, the claimed failure by counsel to use the hospital records on cross-examination had a minimal impact, if any, and certainly does not "undermine . . . confidence in the verdict" so as to overcome petitioner's procedural default. United States v. Wang, 78 F.3d 73, 82 (2d Cir. 1996) (quotation omitted).
With respect to counsel's failure to request a missing witness charge, such a charge is appropriate only when a party has within its control a material witness who would naturally be expected to testify favorably to that party, but does not. If that party fails to call the witness, it is fair to instruct the jury to assume that the witness might have instead testified unfavorably. Therefore, in order for a defendant to be entitled to the charge, the witness must be in the "control" of the prosecution "by nature of his status or otherwise," People v. Gonzalez, 68 N.Y.S.2d 424, 429, 509 N.Y.S.2d 799, 800 (1986), and must have been expected to testify favorably to the prosecution. At the time of petitioner's trial, Detective Nieves was suspended from the police force and had subsequently been arrested for carrying an unlicensed firearm and a fake police badge. Given those circumstances, calling Detective Nieves as a witness may not have even been possible. See People v. Brando, 109 A.D.2d 845, 486 N.Y.S.2d 372 (2d Dep't 1985) (no error in denying defendant's request for a missing witness charge when that witness was an officer who had been indicted for burglary and was determined not to be in control of the people); cf. People v. Vallejos, 125 A.D.2d 352, 508 N.Y.S.2d 615 (2d. Dep't 1986) (a retired police officer is not in control of the state). In addition, even if I found that petitioner demonstrated that his counsel's failure to request a missing witness charge was unreasonable, which I do not, I still do not find that petitioner has demonstrated that there was "a reasonable probability that, but for counsel's [error], the result of the proceeding would have been different." Strickland, 466 U.S. at 694. Indeed, I agree with Magistrate Freeman's conclusion that "there is no basis in the record to assume that Detective Nieves had material knowledge beyond his interviews of Perez and Antonio, and the credibility of those prosecution witnesses was already substantially undermined by [petitioner's counsel's] impeachment with prior inconsistent statements." (RR at 40). Accordingly, petitioner has failed to demonstrate that he was prejudiced by his procedural default with respect to his claim of ineffective assistance of counsel.
CONCLUSION
For the foregoing reasons, petitioner's § 2254 habeas petition is denied.