Opinion
02-CV-3807 (JBW), G3-MISC-0066 (JBW)
November 12, 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, The case is decided on less than a complete state file, but on the basis of sufficient information to decide the case.
I. Facts and Procedural History
This petition was filed in this court on June 26, 2002 after a transfer from the Southern District of New York. Petitioner (sometimes referred to as defendant), claims:
1) Petitioner was denied effective assistance of counsel, when petitioner requested an interpreter and trial counsel refused to inform the court in violation of petitioner's Sixth and Fourteenth Amendment right's [ sic].
2) Petitioner was denied a fair trial, when the trial court failed to instruct the jury that it could not use two co-defendant's [ sic] guilty pleas as evidence of petitioner's guilt or innocence.
3) Petitioner was denied his Sixth Amendment right to a jury trial, because the trial judge absented himself from the courtroom during readbacks of trial testimony to do work in his chambers.
4) The trial court violated petitioner[']s right to a fair trial and due process, also, equal protection of the laws pursuant to the Constitution of the United States (Const, Amend-XIV) by instructing the jury that, with regard to its charge, "the verbal content as well as any vocal tones, facial expressions and physical gestures, everything is of equal importance."
5) Petitioner's conviction violated due process of law because his guilt was not proven beyond a reasonable doubt, and was against the weight of the evidence, where his accomplice, who was unbelievable, was the only witness who gave testimony establishing petitioner's guilt, U.S. Const. Amend, XIV.
6) Petitioner was denied effective assistance of appellate counsel in violation of the United States Constitution, Sixth and Fourteenth Amendments.
The evidence supports the following statements:
In the early morning hours of November 27, 1987, on 69th Street in Queens County, petitioner fatally shot Guillermo Franco in the chest at close range, Petitioner then fled the scene in a van. He was arrested minutes later in that same van along with Julio Palacios and Ivan Dario.
All three individuals were charged with Murder in the Second Degree (New York Penal Law § 125.25[1]), Criminal Possession of a Weapon in the Second Degree (New York Penal Law § 265.03), and Criminal Possession of a Weapon in the Third Degree (New York Penal Law § 26"5.02[4]) (Queens County Indictment Number 8126/87).
(On September 15, 1989, Palacios pleaded guilty to Criminal Possession of a Weapon in the Second Degree and was sentenced on December 15, 1989, to an indeterminate prison term of from one and three-quarters to four and one-quarter years. On September 18, 1989, Dario pleaded Guilty to Criminal Possession of a Weapon in the Third Degree and was sentenced on October U, 1989, to an indeterminate prison term of from one to three years.)
At the conclusion of his trial, petitioner was convicted of all the charges in the indictment, He was sentenced on October 2, 1989, to an indeterminate prison term of from twenty-five years to life for the murder conviction, an indeterminate prison term of from seven and one-half to fifteen years for the second-degree weapon possession conviction., and an indeterminate prison term of from three and one-half to seven years for the third-degree weapon possession conviction. All terms were ordered to run concurrently with each other and consecutively to a previously imposed thirty-five years federal sentence for unrelated kidnaping and narcotics trafficking convictions.
In October, 1991, petitioner appealed his conviction to the Appellate Division, Second Department — On appeal, petitioner raised three claims: i) that his guilt had not been proven beyond a reasonable doubt; ii) that the trial court had erred in admitting highly prejudicial testimony, had aggravated this error by permitting the prosecutor to comment on the testimony in summation, and had improperly charged the jury regarding the testimony; and iii) that he had received the ineffective assistance of counsel because his attorney had also represented one of hi a co-defendants at the Wade hearing.
In February 1992, petitioner filed a supplemental brief with the Appellate Division, claiming that the trial court had erred by instructing the jury that the non-verbal aspects of the court's charge were of equal importance to the verbal communications.
On or about March 12, 1992, petitioner filed a petition for writ of error coram nobis in the Appellate Division, claiming that he had received ineffective assistance of appellate counsel because counsel failed to raise issues concerning the believability of the accomplice, the sufficiency of the evidence, and an alleged Rosario violation. On May 15, 1992, the Appellate Division denied petitioner's application for a writ of error coram nobis.
On February 1, 1993, the Appellate Division unanimously affirmed petitioner's judgment of conviction. People v. Hernandez, 190 A.D.2d 688, 594 N.Y.S.2d 620 (2d Dept. 1993), The court ruled that petitioner received the effective assistance of counsel, that the evidence sufficiently proved petitioner's guilt, and that petitioner's remaining contentions were either unpreserved for review or did not require reversal of the case. Id.
On February 8, 1993, petitioner filed a motion to re-argue the Court's decision, In his motion, petitioner complained that the court had failed to address the issues raised in his supplemental brief. On March 22, 1993, this Court denied petitioner's motion to re-argue.
Petitioner's subsequent application for leave to appeal to the New York Court of Appeals was denied on April 14, 1993. See People v. Hernandez, 81 N.Y.2d 971, 598 N.Y.S.2d 773 (1993) (Hancock, J.).
On October 27, 1993, petitioner filed a pro se motion to vacate his judgment of conviction. In that motion, he claimed that his rights had been violated because the People had not supplied him with co-defendant Palacios's FBI rap sheet, which indicated that Palacios had a prior conviction in New Jersey. Petitioner also claimed that the trial judge had impermissibly absented himself from the courtroom during the readback of testimony.
On January 12, 1994, the People opposed petitioner's motion arguing that both claims were mandatorily procedurally barred from review and without merit.
On January 14, 1994, the trial court denied petitioner's motion for the reason stated in the People's opposition papers.
On September 3, 1995, petitioner, proceeding pro se, petitioned the Appellate Division, for a second time, for a writ of error coram nobis. In that petition, he claimed that he was denied the effective assistance of appellate counsel because his attorney had failed to raise the issue of the trial judge's absence form the courtroom during the readback of testimony. On November 14, 1995, the Appellate Division denied his petition.
On September 26, 1996, petitioner, proceeding pro se, moved for reconsideration of the court's denial of his petition for a writ of error coram nobis. He argued that the People in their October 12, 1995 response to that petition bad only argued that his motion was untimely and had not addressed the merits of his petition.
On September 11, 1997, the Appellate Division held petitioner's petition in abeyance. The court appointed counsel to prosecute petitioner's application and granted petitioner leave to file a brief on the issue of the judge's absence from the courtroom during the readback of testimony.
On or about January 28, 1998, petitioner, through appointed counsel, filed a brief in support of his petition for a writ of error coram nobis with the Appellate Division, Petitioner argued that his light to a trial by jury had been violated when the trial judge absented himself from the courtroom during the readback of testimony.
On March 22, 1999, the Appellate Division granted petitioner's petition for a writ of error coram nobis. In lieu of a new appeal, the court vacated its prior affirmance of the judgment of conviction, and reversed the conviction on the ground that the trial judge's absence from the courtroom while testimony was readback to the jury "does not comport with the Justice's supervisory role, or with the established expectations and conventions that underlie the Justice's function." People v. Hernandez, 259 A.D.2d 708, 688 N.Y.S.2d 161 (2d Dept. 1999).
The People sought leave to appeal to the Court of Appeals and, on August 10, 1999, permission to appeal the Appellate Division's order, insofar as it reversed the judgment of conviction, was granted. See People v. Hernandez, 93 N.Y.2d 1019, 697 N.Y.S.2d 578 (2000).
On April 11, 2000, the Court of Appeals reversed the order of the Appellate Division, insofar as it reversed the judgment of conviction, and remitted the case to the Appellate Division for further proceedings. The Court of Appeals held that the trial judge's absence from the courtroom, with the consent of both parties, during the readback of trial testimony, while disfavored, did not deprive petitioner of the right to a trial by jury. See People v, Hernandez, 94 N.Y.2d 552, 708 N.Y.S.2d 34 (2000).
On July 10, 2000, the Appellate Division affirmed petitioner's judgment of conviction. See People v. Hernandez, 274, D.2d 434, 711 N.Y.S.2d 769 (2d Dept. 2000).
On or about September 6, 2000, petitioner filed another motion to vacate his judgment of conviction pursuant to New York Criminal Procedure Law section 440.10. In his motion. petitioner claimed that: i) the People failed to prove his guilt beyond a reasonable doubt because co-defendant Palacios's testimony was, inter alia, biased, inconsistent and tailored to implicate petitioner; ii) that the trial court had erred by failing to charge the jury not to draw any inference of petitioner's guilt from the guilty pleas taken by his co-defendants; iii) that co-defendant Dario's guilty plea should not have been admitted to the jury because Dario's credibility could not be tested as Dario was not a witness at trial; and, iv) that petitioner was denied the effective assistance of counsel because his attorney failed to alert the court to petitioner's request to petitioner's request for an interpreter to assist him in understanding the proceedings and, thereby, enable him to assist in his own defense.
In a decision and order dated March 12, 2001, the trial court denied petitioner's claim that the People failed to prove his guilt beyond a reasonable doubt because this issue was previously determined on the merits upon appeal from the judgment of conviction. See N.Y.C.P.L. § 440, 10(2)(a). The court also held that his claims that the trial court erred in its charge to the jury and that co-defendant Dario's guilty plea should not have been admitted were procedurally barred because sufficient facts appeared on the record to have allowed for appellate review but petitioner unjustifiably failed to raise these claims on appeal. See N.Y.C.P.L. § 440.10(2)(c)). In addition, the court denied petitioner's claim that he was denied effective assistance of trial counsel because the claim was conclusively refuted by documentary proof and the trial record, Se RY.C.P.L. § 440.30(4)(c)). The court further observed that the trial record also reflects several instances when petitioner's trial counsel represented to the court that he had specific conversations with the petitioner and that petitioner participated in the decisions made regarding the course of his defense. Finally, the court denied petitioner's motion to vacate his judgment of conviction because he failed to raise all four claims in his previous motions to vacate, even though he was in a position to do so. See N.Y.C.P.L. § 440.10(3)(c)).
On April 12, 2001, petitioner sought permission to appeal to the Appellate Division, Second Department, pursuant to N.Y.C.P.L. § 460.15, from the order denying his motion to vacate his sentence
In its decision and order dated June 20, 2001, the Appellate Division denied petitioner's application for leave to appeal the lower court's denial of his motion to vacate judgment.
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. Kuhiman, 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 slate 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 docs 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. Anus, 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 US. 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 docs not justify equitable tolling).
Prisoners cannot circumvent the strict AEDPA limitations period by invoking the "relation back" doctrine by arguing that a new petition should be treated as having been filed on the same day as a first petition. As the court of appeals has explained,
If [the limitations period] were interpreted as Petitioner argues, the result would be impractical. A habeas petitioner could file a non-exhausted application in federal court within the limitations period and suffer a dismissal without prejudice. He could then wait decades to exhaust his state court remedies and could also wait decades after exhausting his state remedies before returning to federal court to "continue" his federal remedy, without running afoul of the statute of limitations.Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000) (quoting Graham v. Johnson, 158 F.3d 762, 780 (5th Cir. 1999)).
IV. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available slate 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 slate 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 SO4, 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. Fition, 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 US. 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. VL 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 S-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 over whelming record support." Strickland, 466 U.S. at 6%, "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App, LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694), Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others, See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Strickland, 466 U.S. at 690-91. Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The court of appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy — a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 2003 U.S. App. LEXIS 2511, at *78-*79 (remanding to district court for factual hearing because it was " unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," Strickland, 466 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 nonfirivolous 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 (JBW), 2003 U.S. Dist. LEXIS 11077, at *4-*5 (E.D.N.Y. June 16, 2003) (grand jury claims); Custodio v. Duncans, Nos. 99-CV-2561, 03-MISC-0066 (JBW), 2003 U.S. Dist. LEXIS 11050, at *4-*7 (E.D.N.Y. June 11, 2003) ( Batson challenges); Reyes v. Irwin, 99-CV-3758, 03-M3SC-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. LEXTS 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.NY. 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) (shilling 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. (519, 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.
Petitioner claims, as he did in his second state motion to vacate his judgment of conviction, that he was denied the effective assistance of counsel because his trial counsel failed to request a interpreter, and that he was also denied the right to a fair trial when the court failed to instruct the jury that it could not use the two co-defendants' guilty pleas as evidence of petitioner's guilt or innocence.
The trial court, in rejecting these claims, invoked New York State procedural bars. The trial court rejected petitioner's first claim because his allegation was "conclusively refuted by unquestionable documentary proof." See New York Crim, Proc. Law § 44(UG(4)(c). It also rejected this claim, as well as petitioner's second claim, because petitioner unjustifiably failed to raise the claim in his first motion to vacate his judgment of conviction. See New York Grim. Proc. Law § 440.10(3)(c). The trial court rejected petitioner's second claim because that claim related to matters that appeared on the record and could have been raised on direct appeal, but petitioner unjustifiably failed to raise the claim on direct appeal. See New York Crim. Proc, Law § 440.10(2)(c), Because the trial court rejected these two claims on the basis of state procedural bars, rather than on the merits, petitioner may not obtain federal habeas corpus review of then unless he establishes cause for his procedural default and resulting prejudice, or that the failure to consider the claims now will result in a fundamental miscarriage of justice, Petitioner has not made these showings. He is not entitled to review of these claims.
The Appellate Division's denial of petitioner's application to appeal from the denial of his motion to vacate docs not mean that the Appellate Division considered the merits of these claims. When faced with a silent rejection of a claim in the state court, the habeas court must "look through" that decision to the "last reasoned opinion" issued in the state court. Yist v. Nunnemaker, 501 U.S. at 803; Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993), If "the last reasoned opinion on the claim explicitly imposes a procedural default," then a habeas court will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits. Yist v. Nunnemaker, 501 US. at 803.
Petitioner has failed to establish that his case falls within any exception to the procedural bar. When, as here, a claim has been procedurally defaulted in state court, a federal court may address its merits only if the petitioner can show both cause for the procedural default and that he will be prejudiced by non-review of the claim or — alternatively — that a fundamental miscarriage of justice will occur if the court does not review the claim. See Murray v. Carrier, 477 U.S. 478., 485, 492 (1986); Wainwright v. Sykes, 433 U.S. 72, 87 (1977); Rodriguezv. Mitchell, 252 F.3d 191 (2d Cir. 2001). None of these predicates has been established.
Failing such a showing, the only other avenue petitioner has to achieve federal review of a claim that has been procedurally defaulted in state court would be for him to establish that a fundamental miscarriage of justice will occur if the Court does not review his claim. See Murray v. Carrier, 477 U.S. at 496; Wainwright v. Sykes, 433 U.S. at 91; Rodriguez v. Mitchell, 252 F.3d at 204, The Supreme Court has recognized that this will generally apply in a situation where the constitutional violation "probably has caused the conviction of one innocent of the crime," Schlup v. Delo, 513 U.S. 298, 325 (1995); see also Murray v. Carrier, 477 U.S. at 495-96. To establish this, the petitioner must show that it is "more likely than not that no reasonable juror would have convicted" him if the constitutional error had not occurred, Schlup v. Delo, 513 U.S-at 327-18 (emphasis added), "To be credible, an actual innocence claim requires a petitioner to present "new reliable evidence — whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence — that was not presented at trial." Id. at 324.These predicates have not been established.
Petitioner's claim that he needed an interpreter is belied by the record. His allegation that be requested an interpreter is conclusively refuted by a sworn affidavit from his trial attorney, which was submitted to the trial court by the State in response to petitioner's motion to vacate his judgment of conviction.
Petitioner's attorney was not ineffective for Failing to request of the trial court that petitioner be provided with an interpreter at trial because the record indicates that petitioner had no difficulty understanding the English language and did not require an interpreter at that stage of the proceedings to meaningfully assist in his own defense, At the close of the State's case and just prior to summations, defense counsel informed the trial court that he hail had a discussion with his client concerning an intoxication defense charge, and that petitioner had expressed to him that he agreed with the position that his attorney had expressed to the trial court during a side bar conference (Colloquy: 413).
Petitioner cannot establish that he will be prejudiced, or that a fundamental miscarriage of justice will occur, if this court does not review his second claim that he was denied the right to a fair trial when the court failed to instruct the jury that it could not use the two co-defendants' guilty pleas as evidence of petitioner's guilt or innocence, The record refutes petitioner's contention that he was denied a fair trial by the trial court's charge. Despite petitioner's claim, the trial court made diligent efforts to charge the jury that they must scrutinize the testimony of Palacios, an interested witness. Specifically, the trial court instructed the jury that;
Under the law, the Defendant on trial may not be convicted solely on the testimony of a witness who is an accomplice, and here I've determined that Mr. Palacios is an accomplice.
Now, our law views with suspicion the testimony of an accomplice in a criminal trial, since by his own testimony, he was in some way involved or a participant in the event charged in the indictment.
This is especially true where an accomplice witness has sought or received or been promised some consideration, and there was some testimony about that in exchange for his testimony. It is for such reason that the law requires that the testimony of an accomplice must be corroborated by other evidence apart from that accomplice's own testimony (Jury Charge: 531).
The trial court not only alerted the jury that they must evaluate Palacios's testimony with suspicion because of his agreement to testify on behalf of the State, but also, in order to find petitioner guilty of the crimes charged, they must find that Palacios's testimony was corroborated by independent evidence.
The trial court instructed the jury that, "Mr. Dario was not here in any way during the course of the trial, and you're not to concern yourself or speculate to the reasons why Mr. Dario was not here in any way or why Mr. Dario was not on trial" (Jury Charge; 503), This admonition specifically instructed the jury not to speculate as to Dario in "any way," [therefore] the jury could not consider Dario's guilty plea in its deliberations.
The trial court instructed the jury that an inference of guilt "may not be based upon conjecture, supposition, suggestion, speculation or any other inference" (Jury Charge: 536). The jury, therefore, was unequivocally told not to speculate on any inference., which dictated that the jury could not speculate about the two co-defendants' guilty pleas.
This series of claims has no merit in view of the strong proof of guilt.
B.
Petitioner claims that he was denied his right to a jury trial because the trial judge absented himself from the courtroom during readbacks of trial testimony. Petitioner has failed to establish that the slate court's rejection of this claim was contrary to, or an unreasonable application of, well-settled Supreme Court law.
Under the provisions of Antiterrorism and Effective Death Penalty Act (AEDPA), a state prisoner's application for a writ of habeas corpus shall not be granted with respect to any claim that was adjudicated on the merits in state court unless that adjudication (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) was "based on an unreasonable determination of the facts in light of the evidence presented at the State court proceeding," 28 U.S.C § 2254(d)(1), (2).
The threshold question is whether the state courts adjudicated petitioner's habeas claim on the merits, thus triggering section 2254(d) of the AEDPA, In Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001), the United States Court of Appeals for the Second Circuit decided under what circumstances a state court decision that does not discuss or refer to the merits of a defendant's federal claim nor references federal law constitutes an "adjudication on the merits" triggering the deferential standard of review under the AEDPA. The Second Circuit held that, for the purposes of AEDPA deference, a state court "adjudicate[s] a state prisoner's federal claim when it (1) disposes of the claim on the merits, and (2) reduces its disposition to judgment," Sellan v. Kuhlman, 261 F.3d at 312. This holding, the Court noted, was mandated by the plain meaning of the AEDPA and is consistent with the "teaching that federal habeas courts should be 'wary of impos[ing] on state courts the responsibility for using particular language in every case in which a state prisoner present[s] a federal claim/" Id. (quoting Coleman v. Thompson, 501 U.S. 722).
The Second Circuit then adopted the Fifth Circuit's "succinct articulation of the analytic steps that a federal court should follow in determining whether a federal claim has been adjudicated 'on the merits' by a state court." Id. at 314. In determining whether a state court disposition of a claim is on the merits, a federal court should consider; (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the claims on the merits; and (3) whether the slate court's opinion suggests reliance upon procedural grounds rather than a determination on the merits. Id.
Here, the record establishes that the state court adjudicated petitioner's claim that he was denied the right to a jury trial by the trial judge's absence during readbacks on the merits. In its opinion reversing the Appellate Division's decision to vacate petitioner's judgment of conviction, the Court of Appeals explicitly addressed petitioner's constitutional claim that he was denied his Sixth Amendment right to a jury trial by the trial judge's absence during readbacks, and specifically cited relevant federal law, such as United States v. Grant, 52 F.3d 448 (2d Cir. 1995), and United States v, Pfingst, 477 F.2d 177 (2d Cir.), cert. denied, 412 U.S. 941 (1973). The Court of Appeals went on to reject petitioner's claim by correctly discerning that the trial judge's "absence did not rise to the level of a 'mode of proceedings' error requiring reversal." People v. Hernandez, 94 N. Y, 2d 552, 556 (2000), The Court of Appeals found that "the record indicates clearly that all substantive rulings regarding the readbacks were made by the Trial Judge and no delegation of judicial authority occurred." Id.
The next question is whether or not the state court's adjudication of petitioner's claim was contrary to, or an unreasonable application of, established Supreme Court precedent. 28 US.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court delineated an analytical framework to guide review of habeas claims under the deferential standard of review. The Court first held that, "The threshold question in whether [the petitioner] seeks to apply a rule of law that was clearly established at the time his state court convictions became final." Id. at 390, This means that a petitioner must "identify a clearly established Supreme Court precedent that bears on his claim." Loliscio v. Goord, 263 F.3d 178, 191 (2d Cir. 2001). Accord, Garvin v. Farmon, 258 F.3d 951, 955 (9th Cir 2001) ("Analysis of an AEDPA habeas corpus appeal begins with identification of what Supreme Court decisions [petitioner] claims the state court decision was contrary to or misapplied"), cert. denied, ___ U.S. ___, 122 S.Ct. 1546 (2002).
Next, the Court identified the need to treat independently the "contrary to," and the "unreasonable application of," clauses of section 2254(d)(1), With respect to the "contrary clause." the Court held that the writ may issue in two circumstances: first, if the state court decision applied the incorrect legal standard or rule to the case; and second, if the state court decision addressed a set of facts "materially indistinguishable" from a relevant Supreme Court case and arrived at a result opposite to that reached by the Court. Id. at 404-406.
To be unreasonable, "[s]ome increment of incorrectness beyond error is required." Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000), That increment, however, "need not be great; otherwise, habeas relief would be limited to state court decisions 'so far off the mark as to suggest judicial incompetence,'" Id. In order to determine whether a state court has reasonably applied clearly established Supreme Court law, it is appropriate to examine how other federal courts of appeals have analysed the issue to be decided in order to see the factors those courts have considered relevant in making such a determination. Cruz v. Miller, 255 F.3d 77 (2d Cir. 2001). In analyzing the particular issue in Cruz, the Second Circuit held that, regardless of what that court might have held if analyzing the claim de novo, the court was only to decide if, under the circumstances, the state court's determination was "reasonable" and should not put itself in the position of "grading [the state courts'] papers," Id.
Review of petitioner's claim that he was denied his right to a jury trial when the trial judge absented himself from the courtroom during readbacks of trial testimony, under the standards imposed by AEDPA, indicates that petitioner is not entitled to habeas corpus relief. Petitioner has not established that the state court's rejection of his claim was contrary to well-settled Supreme Court law.
The Supreme Court has apparently never ruled on whether a judge's absence from the courtroom during readbacks of trial testimony is a violation of a defendant's due process rights, or under what circumstances such an absence might be permitted.
The relevant federal law pertaining to petitioner's claim is set forth in United States v. Grant, 52 F.3d 448 (2d Cir. 1995). It is consistent with the New York Court of Appeals treatment of the issue, In Grant, the judge left the courtroom during a two and one-half hour readback, and the court held that the trial judge's absence during a readback, without a showing of prejudice, was not error. Id., at 448-49, It found that while the presence of the trial judge is necessary for "substantive conduct of functional portions of the trial," it is not necessary for "mere symbolic presence during performance of mechanical repetitions. Id. at 450. Specifically, the Court held that the trial judge's presence is not "essential while the jury is hearing a rereading of previously received testimony," because there "is nothing for the judge to rule on," Id. at 449-50.
The error, if any, was not of a constitutional stature.
This claim has no merit.
C.
Petitioner claims that the trial court violated his right to a fair trial by instructing the jury that "the verbal content [of the instructions], as well as any vocal tones, facial expressions and physical gestures, everything is of equal importance," The state court's decision that the trial court's charge did not warrant reversal was not contrary to, or an unreasonable application of, clearly established federal law as determined by Supreme Court precedent. Petitioner's claim does not warrant habeas corpus relief.The propriety of a state trial court's jury instructions is ordinarily a matter of state law that does no I raise a federal constitutional question, See Cupp v. Naughten, 414 U.S. 141, 146 (1973); United States ex rel. Smith v. Montanye, 505 F.2d 1355, 1359 (2d Cir. 1974), cert. denied, 423 U.S. 856 (1975), Even if a jury instruction is improper under state law, federal habeas corpus relief is unavailable unless the instruction also violated the petitioner's rights secured by the constitution, laws, or treaties of the United States, See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991) (claim that jury instruction was incorrect as a matter of state law is not a basis for federal habeas relief);a Knaubert v. Goldsmith, 791 F.2d 722, 726 n. 1 (9th Cir.), cert. denied, 479 U.S. 867 (1986). To be entitled to federal habeas corpus relief, a petitioner must show not merely that a jury instruction was "undesirable, erroneous, or even 'universally condemned'" but also that it violated some right that was guaranteed to him by the federal constitution. Cupp v. Naughten, 414 U.S. at 146. "The question is whether the 'ailing instruction by itself so infected the entire trial that the resulting conviction violates due process/" Grey v. Henderson, 788 F. Supp. at 693 (quoting Cupp v. Naughten, 414 U.S. at 147).
The habeas court must "review the instructions as a whole to see if the entire charge delivered a correct interpretation of the law." California v. Brown, 479 U.S. 538, 541 (1987); see Victor v. Nebraska, 511 U.S. 1 (1994). And in evaluating the charge, the petitioner has an "especially heavy" burden when complaining that his constitutional rights were violated by the trial court's failure to give a particular instruction, Hendricks v. Vasquez, 974 F.2d 1099, 1106 (9* Cir. 1992) (quoting Henderson v. Kibbe), 431 U.S. 145, 155 (1977)); see also Woratzeck v. Ricketts, 820 F.2d 1450, 1457 (9th Cir. 1987) (failure to instruct jury on a defense theory is not a basis for habeas corpus relief unless the error rendered the trial so fundamentally unfair as to deny due process).
Here, petitioner fails to provide the Court with a Supreme Court decision that prohibits the type of charge delivered by the trial court in this ease.
The court's charge was not so egregious that this court can conclude that the state court unreasonably applied Supreme Court precedent in determining that the charge did not violate petitioner's constitutional rights. The charge shows that the trial judge attempted to protect petitioner's constitutional rights, rather than to infringe upon them. It recognizing the natural tendency to speak with expression rather than in monotone, instructing the jury [to] "disregard" these "communication deviations . . . and treat all portions of the charge with equal . . . importance" (Colloquy: 487-88), Thus, rather than attempting "to direct the jury to be influenced by inflections in the judges [ sic] voice, his gestures and body language" (Petition, Point four, paragraph three), the trial judge specifically instructed the jury not to be swayed by any exhibition of emotion on the part of the judge, The trial court's instruction did not infect the entire trial in such a manner that the resulting conviction violated petitioner's right to due process.
This claim has no merit.
D.
Petitioner claims that the prosecution failed to establish his guilt beyond a reasonable doubt because the prosecution's main witness, Palacios, was incredible as a matter of law. The evidence presented at trial was legally sufficient to support petitioner's conviction for intentional murder. Petitioner's fatal single shot of the victim was witnessed by Palacios; this witness was supported by off-duty Detective Samuel Panuccio. Although Panuccio did not witness the actual shooting, he did observe petitioner arguing with the victim moments before the victim was shot, and heard a gunshot that came from the location where petitioner was standing. Moreover, when stopped by the police minutes after the shooting, petitioner attempted to avoid arrest by fighting and struggling with them, even reaching towards the gun that was hidden under a rug in the back of van, In view of this corroborating evidence of Palacios's account of the shooting, there is no basis to conclude Palacios's testimony was incredible as a matter of law. Petitioner's challenge to the sufficiency of the evidence is meritless. The state court's decision rejecting petitioner's challenge to the sufficiency of the evidence was not contrary to, or an unreasonable application of, Supreme Court precedent.
This claim has no merit.
E.
Petitioner's claim that he received ineffective assistance of counsel on his application for leave to appeal to the New York Court of Appeals does not present this court with a federal constitutional issue for review because there is apparently no constitutional right to counsel on a discretionary appeal, Consequently, this claim is not a viable claim for habeas review. In any event, petitioner's claim is belied by the record, and is without merit.
A criminal defendant has a constitutional right to the effective assistance of counsel solely on any appeal granted to him as a matter of right, Douglass v. California, 372 U.S. 353, 357-358 (1963); see Coleman v. Thompson, 501 U.S. 722, 756-757 (1991); Pennsylvania v. Finley, 481 U.S. 551 (1987) (constitution does not grant defendant right to counsel on collateral proceedings after direct appeal has been exhausted); Wainwight v. Torna, 455 U.S. 551 (1937) ("a criminal defendant does not have a constitutional right to counsel to pursue discretionary appeals [beyond the first appeal as of right]" and a defendant therefore "could not be deprived of the effective assistance of counsel by his retained counsel's failure to (perform effectively in seeking such discretionary review) (citing Ross v. Moffitt, 417 U.S. 600, 610-15 (1974)), In New York State, a non-death penalty defendant is granted an appeal as of right to the intermediate appellate court, the Appellate Division, New York C.P.L. § 450.10. In all non-death penalty cases, the Court of Appeals retains discretionary review over appeals. As a result, non-death penalty defendants do not have an appeal as of right to the New York Court of Appeals. New York C.P.L, §§ 450.70, 450.80, 450.90. Consequently, since a non-death penalty defendant only has an appeal as of right to the Appellate Division, it is only the representation provided by the attorney in that court that is governed by the constitutional right to effective assistance.
Here, petitioner is alleging that he received ineffective assistance of counsel from the attorney that represented him on his application for discretionary review by the New York Court of Appeals, Since petitioner, a non-capital defendant, is not entitled to an appeal to the New York Court of Appeals, the constitutional right to effective representation does not attach to this representation. Thus, petitioner's claim does not raise a federal constitutional claim appropriate for habeas review.
In any event, petitioner's claim that his appellate counsel was ineffective for failing to properly present his lower court claims to the Court of Appeals is affirmatively refuted by the record, and, consequently, without merit.
F.
No other claim rises above the frivolous.
XIV. Conclusion
The petition for a writ of habeas corpus is denied.
No certificate of appeal ability is granted. 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.